Order affirmed for the reason that even if subdivision 12 of section 67 of the by-laws of the board of education of the city of New York should be held unreasonable, and said board should have passed upon the relator’s nomination by the board of superintendents in disregard of such by-law, the application to the court for a writ of mandamus was not made within forty days from the filing of such recommendation in the office of the secretary of said board of education and while a vacancy existed to which said board could have appointed the relator. The other questions presented upon this appeal are not passed upon. No costs are allowed on this appeal.

Cullen, Oh. J., Haight, Vann, Werner, Willard Bartlett, Hiscock and Chase, JJ., concur.

Order affirmed.