Dore, J.
Petitioner Lynch, a disabled United States veteran of World War II, and petitioners Farrell and McDonald, veterans of that war, appeal from an order of Special Term denying petitioners a final order (1) directing the municipal civil service commission to place them on a special military eligible list for the position of train dispatcher; (2) directing certification by the commission of petitioners to the board of transportation and appointment by the board to such position, and (3) directing payment to petitioners of the difference between salaries actually received and salaries they should have received as train dispatchers from the date they should have been appointed to the date of actual appointment as train dispatchers.
Special Term, after construing the relevant section of the Military Law (§ 246, subd. 5), directed a trial on the ground it was not clear whether any veteran with a lower rating than any of petitioners had been appointed from the special eligible list. Defendants have not appealed.
Neither in the answer nor in their brief do defendants raise any question as to the actual fitness of petitioners for promotion to the position of train dispatcher. On the contrary, defendants’ answer alleges that on July 6, 1950, as the result of a special military examination, petitioners were placed on an eligible list for promotion to the position of train dispatcher in accordance with their final examination ratings. As defendants permitted petitioners to take the examination for promotion to train dispatcher and placed them on an eligible list therefor, defendants must have been satisfied that petitioners were fit for the position of train dispatcher and theirs is the responsibility for certification and appointment of petitioners if the law otherwise requires such certification and appointment.
The rights of these petitioners to promotion after honorable discharge are set forth in subdivision 5 of section 246 of the Military Law. That subdivision first provides that an employee [378]*378restored to Ms position after termination of Ms military duty “ shall not be subjected directly or indirectly to any loss of time service, increment or any other right or privilege, or be prejudiced in any way with reference to promotion ” by reason of his absence in military service. It then inter alia provides: “ If a promotion examination is held wMIe a public employee entitled to participate therein is on military duty, such public employee shall be given a comparable examination, provided he makes request therefor * * *. If he passes such examina-
tion his name shall be placed upon a special eligible list provided that his name would have been reached for certification between the date when he entered upon such military duty and the date that he was officially notified that he had passed such examination. His name shall likewise be placed upon such special eligible list if, between the aforementioned dates, any veteran or disabled veteran, as the case may be, who achieved a lesser rating in the examination was appointed from the eligible list or special eligible list by reason of veteran’s preference or disabled veteran’s preference, as the case may be, and further provided that such person is entitled to a preference in like manner. Such special eligible list shall remain in existence for a period of two years from the date that the name of such person is placed thereon or for a period of two years from the date this act takes effect, whichever is the longer period and such special eligible list shall be certified before certification shall be made from any subsequent or eligible list, whether open competitive, promotion or preferred wMch has been established for the same position, or from the original eligible list for such position.”
Each petitioner is an honorably discharged United States veteran of World War II and each was engaged in the actual performance of military duty in the armed forces of the United States when in 1945 defendant commission held a promotion examination for the position of train dispatcher. From the original list resulting from that examination, the answer admits: “ All of the * * * veterans were accorded absolute veteran’s preference when certified.” In addition to veterans, nonveterans were also appointed.
Defendants’ position is, not that petitioners are actually unfitted by knowledge or experience for the jobs, but that they were not entitled to be placed on a special eligible list under the Military Law because their names would not have been reached for certification on the original list by reason of their standing and because no veteran or disabled veteran who [379]*379achieved a lesser rating on the original list was certified or appointed. Defendants admit that promotions to the position of train dispatcher were made of nonveterans hut they state the last nonveterans reached for such appointment had a higher average than any of petitioners. Defendants contend that the rights accorded by the Military Law were only intended to give public employees the same rights they would have enjoyed but for their entrance into military service and that the provisions of subdivision 5 of section 246 of the Military Law only means certification of the petitioners in accordance with their standing on the list and without regard to any veteran’s preference.
Although petitioners requested on June 29, 1947, a comparable examination to the promotion examination for the position of train dispatcher that had been held on May 19, 1945, the special examination for promotion afforded petitioners was not granted until March 29,1950. Petitioners satisfactorily passed the special examination for promotion to the position of train dispatcher and their names were placed on a single special military eligible list and assigned positions in relation to the combined eligible list resulting from the original promotion examination for the position of train dispatcher. The resulting special eligible list was not published until July 22, 1950, by which time the original promotion eligible list had already expired on March 19, 1950.
The operative sentences in subdivision 5 of section 246 of the Military Law commencing “ If he passes such examination ” etc. were added to the section by chapter 778 of the Laws of 1949. Prior thereto the sole provision with respect to the place that the re-examined veterans were to take on eligible lists was that they were to be placed on the regular promotion list in the relative order of rating. Thus it is seen that the new provision that the veteran re-examined should go on a special eligible list providing his name “ would have been reached for certification ” between the date when he entered upon such military duty and the date when he was officially notified that he had passed a comparable examination, was added to change the law that he was to be placed upon existing eligible lists in the relative position of his rating.
This amended statute must be read in the light of the Constitution of the State as it existed on the date of the amendment of 1949. At that time, section 6 of article V of the Constitution, after providing for preference for disabled veterans, said: “ Until December thirty-first, nineteen hundred fifty, but in [380]
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Dore, J.
Petitioner Lynch, a disabled United States veteran of World War II, and petitioners Farrell and McDonald, veterans of that war, appeal from an order of Special Term denying petitioners a final order (1) directing the municipal civil service commission to place them on a special military eligible list for the position of train dispatcher; (2) directing certification by the commission of petitioners to the board of transportation and appointment by the board to such position, and (3) directing payment to petitioners of the difference between salaries actually received and salaries they should have received as train dispatchers from the date they should have been appointed to the date of actual appointment as train dispatchers.
Special Term, after construing the relevant section of the Military Law (§ 246, subd. 5), directed a trial on the ground it was not clear whether any veteran with a lower rating than any of petitioners had been appointed from the special eligible list. Defendants have not appealed.
Neither in the answer nor in their brief do defendants raise any question as to the actual fitness of petitioners for promotion to the position of train dispatcher. On the contrary, defendants’ answer alleges that on July 6, 1950, as the result of a special military examination, petitioners were placed on an eligible list for promotion to the position of train dispatcher in accordance with their final examination ratings. As defendants permitted petitioners to take the examination for promotion to train dispatcher and placed them on an eligible list therefor, defendants must have been satisfied that petitioners were fit for the position of train dispatcher and theirs is the responsibility for certification and appointment of petitioners if the law otherwise requires such certification and appointment.
The rights of these petitioners to promotion after honorable discharge are set forth in subdivision 5 of section 246 of the Military Law. That subdivision first provides that an employee [378]*378restored to Ms position after termination of Ms military duty “ shall not be subjected directly or indirectly to any loss of time service, increment or any other right or privilege, or be prejudiced in any way with reference to promotion ” by reason of his absence in military service. It then inter alia provides: “ If a promotion examination is held wMIe a public employee entitled to participate therein is on military duty, such public employee shall be given a comparable examination, provided he makes request therefor * * *. If he passes such examina-
tion his name shall be placed upon a special eligible list provided that his name would have been reached for certification between the date when he entered upon such military duty and the date that he was officially notified that he had passed such examination. His name shall likewise be placed upon such special eligible list if, between the aforementioned dates, any veteran or disabled veteran, as the case may be, who achieved a lesser rating in the examination was appointed from the eligible list or special eligible list by reason of veteran’s preference or disabled veteran’s preference, as the case may be, and further provided that such person is entitled to a preference in like manner. Such special eligible list shall remain in existence for a period of two years from the date that the name of such person is placed thereon or for a period of two years from the date this act takes effect, whichever is the longer period and such special eligible list shall be certified before certification shall be made from any subsequent or eligible list, whether open competitive, promotion or preferred wMch has been established for the same position, or from the original eligible list for such position.”
Each petitioner is an honorably discharged United States veteran of World War II and each was engaged in the actual performance of military duty in the armed forces of the United States when in 1945 defendant commission held a promotion examination for the position of train dispatcher. From the original list resulting from that examination, the answer admits: “ All of the * * * veterans were accorded absolute veteran’s preference when certified.” In addition to veterans, nonveterans were also appointed.
Defendants’ position is, not that petitioners are actually unfitted by knowledge or experience for the jobs, but that they were not entitled to be placed on a special eligible list under the Military Law because their names would not have been reached for certification on the original list by reason of their standing and because no veteran or disabled veteran who [379]*379achieved a lesser rating on the original list was certified or appointed. Defendants admit that promotions to the position of train dispatcher were made of nonveterans hut they state the last nonveterans reached for such appointment had a higher average than any of petitioners. Defendants contend that the rights accorded by the Military Law were only intended to give public employees the same rights they would have enjoyed but for their entrance into military service and that the provisions of subdivision 5 of section 246 of the Military Law only means certification of the petitioners in accordance with their standing on the list and without regard to any veteran’s preference.
Although petitioners requested on June 29, 1947, a comparable examination to the promotion examination for the position of train dispatcher that had been held on May 19, 1945, the special examination for promotion afforded petitioners was not granted until March 29,1950. Petitioners satisfactorily passed the special examination for promotion to the position of train dispatcher and their names were placed on a single special military eligible list and assigned positions in relation to the combined eligible list resulting from the original promotion examination for the position of train dispatcher. The resulting special eligible list was not published until July 22, 1950, by which time the original promotion eligible list had already expired on March 19, 1950.
The operative sentences in subdivision 5 of section 246 of the Military Law commencing “ If he passes such examination ” etc. were added to the section by chapter 778 of the Laws of 1949. Prior thereto the sole provision with respect to the place that the re-examined veterans were to take on eligible lists was that they were to be placed on the regular promotion list in the relative order of rating. Thus it is seen that the new provision that the veteran re-examined should go on a special eligible list providing his name “ would have been reached for certification ” between the date when he entered upon such military duty and the date when he was officially notified that he had passed a comparable examination, was added to change the law that he was to be placed upon existing eligible lists in the relative position of his rating.
This amended statute must be read in the light of the Constitution of the State as it existed on the date of the amendment of 1949. At that time, section 6 of article V of the Constitution, after providing for preference for disabled veterans, said: “ Until December thirty-first, nineteen hundred fifty, but in [380]*380no event for a period less than five years next following the honorable discharge or release under honorable circumstances of a member of the armed forces of the United States who served therein in time of war, who is a citizen and resident of this state and was a resident at the time of his or her entrance into the armed forces of the United States, he or she shall be entitled, after such disabled members of the armed forces shall have been first preferred, to similar preference in appointment and promotion.” Accordingly, in 1949 and 1950 disabled veterans got the first preference, nondisabled veterans a second preference, and the appointment of nonveterans would only follow after the exhaustion of those preferences. Section 21 of the Civil Service Law, as amended, implemented these constitutional provisions and provides for appointments in the order last indicated.
The amendment of the Military Law in 1949 added two conditions with respect to the special eligible lists. If we consider the second condition first, we find that the newly examined eligible was to be placed on a special eligible list if between the date when he entered upon military duty and the date when he was officially notified that he passed the examination * ‘ any veteran or disabled veteran * * * who
achieved a lesser rating in the examination was appointed from the eligible list or special eligible list by reason of veteran’s preference or disabled veteran’s preference and provided further that such person is entitled to a preference in like manner.” It is clear that the constitutional and statutory preferences which were being "granted to nondisabled as well as disabled veterans between 1949 and 1950 were being followed in the military statute. It is likewise clear that under the above-quoted sentence the new eligible would receive the benefit of his veteran’s standing when comparison is being made with former lists to ascertain whether he should be appointed; for he could get preference over veterans with lower marks if there were any left on the list. Said lower rated veterans would in turn be entitled to preference and appointment over any non-veterans. It would thus seem logical that when petitioners’ rights as against nonveterans on the list were being considered the statute intended that they would be entitled to the rights of preference of veterans over nonveterans. It seems reasonably clear that it was likewise intended that under the first conditions (if he passed and “ would have been reached ”) for certification, the eligible was also to have the benefit of his veteran’s standing when such comparison was made. In fact, [381]*381there would be no need for change in the first sentence if, as to nonveterans, these new eligibles were to go on the list according to their examination marks or relative order of rating.
When the clauses in question were added to the Military Law in 1949, the Constitution provided for preference to nondisabled as well as disabled veterans, and gave nondisabled veterans the right to certification before nonveterans, The provisions of the Military Law in question must be read in the light of applicable provisions relative to preference allowed to war veterans in section 6 of article V of the State Constitution, effective during the dates here in question and until December 31, 1950, and the Civil Service Law (§ 21, subd. 3, par. [a], els. [1], [2], [3]) also effective during such dates. So read, petitioner Lynch as a disabled veteran had an absolute right to preference under the Constitution, “ without regard to his * * * standing on any list from which such appointment or promotion may be made ” and the other two petitioners as veterans had the right to certification and appointment under the above section of the Constitution and the Civil Service Law prior to nonveterans.
Petitioners do not contend that they are entitled to replace appointees already appointed but contend that the board of transportation requested the commission to certify to that board a sufficient number of persons from the eligible list for appointment to the position of train dispatcher to fill existing vacancies in such position. In fact, it is alleged and not denied that pursuant to the board of transportation’s request, the commission certified said persons on the list including veterans McDonald and Farrell for appointment to the position of train dispatcher but later the commission withdrew the certification and accordingly the board failed and refused to appoint and later the board informed the petitioners that their names had been removed from the special military eligible list.
On our construction of the Military Law, there is no necessity of a trial. Bead in the light of the proper construction of subdivision 5 of section 246 of the Military Law, the applicable provisions of the State Constitution, and the Civil Service Law effective on the dates here in question, petitioners are entitled to an order directing the commission (1) to reinstate the names of petitioners on the special military eligible list for promotion to the position of train dispatcher, and (2) to certify petitioners ' to the board of transportation for appointment to such position.
[382]*382The order appealed from should he reversed, with $20 costs and disbursements to petitioners-appellants, and an order entered granting petitioners the relief hereinabove indicated. Settle order.