Froessel, J.
Petitioners-appellants, two of the persons who passed an open competitive examination for the position of paver, seek, in this article 78 proceeding, an order directing respondents, who constitute the Municipal Civil Service Commission of the City of New York, (1) to remove certain persons from the paver list on the ground that such persons did not have five years’ satisfactory experience as paver or a satisfactory equivalent, and to nullify all certifications of such persons for the position; (2) to nullify all proceedings had with reference to a promotion examination for rammer; and (3) to certify as eligible for the position of rammer the list of eligibles for the position of paver as amended by the removal of the assertedly unqualified persons.
We agree with both lower courts that appellants did not make a sufficient showing of unreasonable, arbitrary or capricious conduct by respondents as to the paver examination and the resultant eligible list. The requirement of a “ satisfactory [144]*144equivalent ” in lieu of five years’ satisfactory experience as a paver is not, under the circumstances here presented, so vague and indefinite as to he unconstitutional. We have not only recognized the concept of satisfactory equivalents, but have held that requirements which exclude this concept may be illegal (see Matter of Cowen v. Reavy, 283 N. Y. 232, 238).
It is well settled by a long line of decisions in this court that “ In the absence of some express limitation the action of the commission in fixing such tests must stand, unless it is so clearly irrelevant and unreasonable as to be palpably indefensible and improper. If any fair, reasonable argument may be made to sustain the action the courts should not interfere, even though they may differ from the commission as to its advisability ” (People ex rel. Moriarty v. Creelman, 206 N. Y. 570, 576; Matter of Thomas v. Kern, 280 N. Y. 236; Matter of Strauss v. Hannig, 256 App. Div. 662, affd. 281 N. Y. 612; Matter of Laverty v. Finegan, 249 App. Div. 411, affd. 275 N. Y. 555; Matter of Cowen v. Reavy, supra, and cases cited therein at p. 237).
We are, however, of the view that respondents acted contrary to law, albeit in good faith, in giving the rammer examination as a promotion examination open to permanent employees in the offices of the presidents of the boroughs of Manhattan, Bronx, Brooklyn and Queens who were employed in the position of “ Laborer ”. Section 16 of the Civil Service Law provides:
“ 1. Filling vacancies by promotion. Vacancies in positions in the competitive class shall be filled, as far as practicable, by promotion from among persons holding positions in a lower grade in the department in which the vacancy exists. * * *
“ 8. Limitation upon promotion, transfer or reinstatement. No promotion, transfer or reinstatement shall be made from a position in one class to a position in another class unless the same be specifically authorized by the state or municipal commission, nor shall a person be promoted or transferred to a position for original entrance to which there is required by this chapter or the rules an examination involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person, unless he shall have passed the examination and is eligible for appointment to such higher position.” (Italics supplied.)
[145]*145There are four classes over which respondents have jurisdiction : exempt, competitive, noncompetitive and labor (Civil Service Law, § 12; N. Y. City Mun. Civ. Serv. Comm. Rules [1947], rule I, subd. 1, p. 1). The position of rammer is classified by respondents in “ The Skilled Craftsman and Operative Service ” part of the competitive class (Rules, rule X, part 38, pp. 88, 90-91). The position of laborer is an entirely different class, namely, the labor class, which is wholly ungraded (Rules, rule X, p. 119). Within the labor class are twenty-five different types of labor, including bakers, butchers, farmers, and a variety of other occupations; those workers in the list who may be found in a borough president’s office are cleaners (men and women), laborers, porters, sewer cleaners, and window cleaners ; there is no reference to payers or rammers.
As we read the pertinent portion of section 16 above quoted, promotion examinations may be held only where the persons sought to be promoted have passed an open competitive examination for a lower grade in the type of work involved in the position to which it is sought to promote them, and paragraph 11 of section X of rule V (Rules, p. 24), which was apparently designed to implement the statute, but used the words “ lower but corresponding character ” instead of “ lower grade ”, as -the statute prescribes, may not be read to the contrary. (Matter of Mendelson v. Finegan, 168 Misc. 102, affd. 253 App. Div. 709, affd. 278 N. Y. 568; Weissberg, Civil Service Rights [1950], p. 47, § 72; Collier on Civil Service, pp. 99-100; Chief Judge Pound’s construction as a member of the State Civil Service Commission (N. Y. Assem. Doc., 1902, No. 56, p. 263 et seq.)
In the Mendelson case (supra), the promotions in question were from law clerk to law assistant, all within the same department and the same class — competitive — and we affirmed the courts below in holding that section 16 of the Civil Service Law cannot be construed to permit such promotions where the persons sought to be promoted had not on original entrance into the service taken a competitive examination which in any way tested their skill for the type of work to which it was sought to promote them. Here the same principle applies, but with greater force, for the laborers never took an open competitive examination which even remotely tested their skill as rammers — indeed, their [146]*146occupational designations indicate the nature of their work and qualifications; and, since the position of rammer is classified in a skilled part of the competitive class, whereas the position of laborer is in a wholly different class and ungraded, ‘ ‘ we must accept as a fact that the examination for these positions involves essential tests and qualifications differing from each other.” (Matter of O’Connell v. Clark, 200 App. Div. 606, 609.) 11 It has been the generally accepted doctrine throughout the State that as to the positions of laborers * * * it was not practicable to employ competitive examinations in order to determine fitness ” (People ex rel. Langdon v. Dalton, 49 App. Div. 71, 74, affd. 163 N. Y. 556). Matter of Williams v. Morton (297 N. Y. 328), cited by Judge Fuld, is not helpful to his position, for there we enjoined the assignment of a physician to a new post in the medical service at almost twice his then salary without any examination whatsoever.
If by the Mendelson decision graded law clerks who took a competitive examination for that position were not eligible for promotion to graded law assistants, how can we now hold that ungraded laborers who never took any open competitive examination at all are eligible for promotion to rammers, which the Civil Service Commission places in the Skilled Craftsman and Operative Service, and which position pays one and one halftimes, more or less, the compensation fixed for laborers 1
Free access — add to your briefcase to read the full text and ask questions with AI
Froessel, J.
Petitioners-appellants, two of the persons who passed an open competitive examination for the position of paver, seek, in this article 78 proceeding, an order directing respondents, who constitute the Municipal Civil Service Commission of the City of New York, (1) to remove certain persons from the paver list on the ground that such persons did not have five years’ satisfactory experience as paver or a satisfactory equivalent, and to nullify all certifications of such persons for the position; (2) to nullify all proceedings had with reference to a promotion examination for rammer; and (3) to certify as eligible for the position of rammer the list of eligibles for the position of paver as amended by the removal of the assertedly unqualified persons.
We agree with both lower courts that appellants did not make a sufficient showing of unreasonable, arbitrary or capricious conduct by respondents as to the paver examination and the resultant eligible list. The requirement of a “ satisfactory [144]*144equivalent ” in lieu of five years’ satisfactory experience as a paver is not, under the circumstances here presented, so vague and indefinite as to he unconstitutional. We have not only recognized the concept of satisfactory equivalents, but have held that requirements which exclude this concept may be illegal (see Matter of Cowen v. Reavy, 283 N. Y. 232, 238).
It is well settled by a long line of decisions in this court that “ In the absence of some express limitation the action of the commission in fixing such tests must stand, unless it is so clearly irrelevant and unreasonable as to be palpably indefensible and improper. If any fair, reasonable argument may be made to sustain the action the courts should not interfere, even though they may differ from the commission as to its advisability ” (People ex rel. Moriarty v. Creelman, 206 N. Y. 570, 576; Matter of Thomas v. Kern, 280 N. Y. 236; Matter of Strauss v. Hannig, 256 App. Div. 662, affd. 281 N. Y. 612; Matter of Laverty v. Finegan, 249 App. Div. 411, affd. 275 N. Y. 555; Matter of Cowen v. Reavy, supra, and cases cited therein at p. 237).
We are, however, of the view that respondents acted contrary to law, albeit in good faith, in giving the rammer examination as a promotion examination open to permanent employees in the offices of the presidents of the boroughs of Manhattan, Bronx, Brooklyn and Queens who were employed in the position of “ Laborer ”. Section 16 of the Civil Service Law provides:
“ 1. Filling vacancies by promotion. Vacancies in positions in the competitive class shall be filled, as far as practicable, by promotion from among persons holding positions in a lower grade in the department in which the vacancy exists. * * *
“ 8. Limitation upon promotion, transfer or reinstatement. No promotion, transfer or reinstatement shall be made from a position in one class to a position in another class unless the same be specifically authorized by the state or municipal commission, nor shall a person be promoted or transferred to a position for original entrance to which there is required by this chapter or the rules an examination involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person, unless he shall have passed the examination and is eligible for appointment to such higher position.” (Italics supplied.)
[145]*145There are four classes over which respondents have jurisdiction : exempt, competitive, noncompetitive and labor (Civil Service Law, § 12; N. Y. City Mun. Civ. Serv. Comm. Rules [1947], rule I, subd. 1, p. 1). The position of rammer is classified by respondents in “ The Skilled Craftsman and Operative Service ” part of the competitive class (Rules, rule X, part 38, pp. 88, 90-91). The position of laborer is an entirely different class, namely, the labor class, which is wholly ungraded (Rules, rule X, p. 119). Within the labor class are twenty-five different types of labor, including bakers, butchers, farmers, and a variety of other occupations; those workers in the list who may be found in a borough president’s office are cleaners (men and women), laborers, porters, sewer cleaners, and window cleaners ; there is no reference to payers or rammers.
As we read the pertinent portion of section 16 above quoted, promotion examinations may be held only where the persons sought to be promoted have passed an open competitive examination for a lower grade in the type of work involved in the position to which it is sought to promote them, and paragraph 11 of section X of rule V (Rules, p. 24), which was apparently designed to implement the statute, but used the words “ lower but corresponding character ” instead of “ lower grade ”, as -the statute prescribes, may not be read to the contrary. (Matter of Mendelson v. Finegan, 168 Misc. 102, affd. 253 App. Div. 709, affd. 278 N. Y. 568; Weissberg, Civil Service Rights [1950], p. 47, § 72; Collier on Civil Service, pp. 99-100; Chief Judge Pound’s construction as a member of the State Civil Service Commission (N. Y. Assem. Doc., 1902, No. 56, p. 263 et seq.)
In the Mendelson case (supra), the promotions in question were from law clerk to law assistant, all within the same department and the same class — competitive — and we affirmed the courts below in holding that section 16 of the Civil Service Law cannot be construed to permit such promotions where the persons sought to be promoted had not on original entrance into the service taken a competitive examination which in any way tested their skill for the type of work to which it was sought to promote them. Here the same principle applies, but with greater force, for the laborers never took an open competitive examination which even remotely tested their skill as rammers — indeed, their [146]*146occupational designations indicate the nature of their work and qualifications; and, since the position of rammer is classified in a skilled part of the competitive class, whereas the position of laborer is in a wholly different class and ungraded, ‘ ‘ we must accept as a fact that the examination for these positions involves essential tests and qualifications differing from each other.” (Matter of O’Connell v. Clark, 200 App. Div. 606, 609.) 11 It has been the generally accepted doctrine throughout the State that as to the positions of laborers * * * it was not practicable to employ competitive examinations in order to determine fitness ” (People ex rel. Langdon v. Dalton, 49 App. Div. 71, 74, affd. 163 N. Y. 556). Matter of Williams v. Morton (297 N. Y. 328), cited by Judge Fuld, is not helpful to his position, for there we enjoined the assignment of a physician to a new post in the medical service at almost twice his then salary without any examination whatsoever.
If by the Mendelson decision graded law clerks who took a competitive examination for that position were not eligible for promotion to graded law assistants, how can we now hold that ungraded laborers who never took any open competitive examination at all are eligible for promotion to rammers, which the Civil Service Commission places in the Skilled Craftsman and Operative Service, and which position pays one and one halftimes, more or less, the compensation fixed for laborers 1 To do so would require us to overrule the Mendelson case. Accordingly, we conclude that the laborers were not eligible for promotion to rammer. This is not to say that they may not qualify, but they must do so by proving their capabilities in open competition with other applicants.
We are not unmindful of the policy manifested in subdivision 1 of section 16 of the Civil Service Law of filling vacancies ‘1 as far as practicable, by promotion from among persons holding positions in a lower grade ’ ’; and of the wisdom of that policy in tending to raise the morale of government employees and thus promote efficiency. However, under our Constitution, article V, section 6, the right to appointment is entitled to the same protection as the right to promotion, and under the statute (Civil Service Law, § 16, subd. 8), promotion examinations may be held only where the employees sought to be promoted have [147]*147passed an open competitive examination for a lower grade in the type of work involved in the position to which promotion is sought.
Since no list for rammer has been legally created, “ there is necessity to resort to a ‘ most nearly appropriate ’ list ” (Matter of Friend v. Valentine, 261 App. Div. 163, 170, affd. 285 N. Y. 764, motion for reargument denied 285 N. Y. 853; Civil Service Law, § 14, subd. 8; see, also, Matter of Ackerman v. Kern, 281 N. Y. 87). Upon this record, it is clear that the paver list is the existing eligible list most nearly appropriate from which to make appointments to rammer, and therefore appointments to that position should have been made from it, and should continue to be made from it, at least until a proper rammer’s list is promulgated.
Respondents argue the Statute of Limitations and loches with respect to appellants’ claim seeking nullification of the rammer examination. However, the rammer list was first promulgated on March 22, 1949, and until respondents made the first appointment therefrom on May 1, 1949, appellants were not aggrieved, for the mere promulgation of the rammer list and the holding of the examination at earlier dates had produced no harm to them (see Matter of Rumack v. McNamara, 195 Misc. 84, 88, 89, affd. 275 App. Div. 805, motion for leave to appeal denied 299 N. Y. 800; Matter of Thomas v. Kern, 280 N. Y. 236, 244, supra; Matter of O’Connell v. Kern, 287 N. Y. 297, 301). Inasmuch as the present proceeding was instituted on June 3, 1949, it was timely brought, and appellants were not guilty of loches.
It follows that Special Term was correct in refusing to remove any eligibles from the paver list, in ordering the nullification of all proceedings had with reference to the promotion examination for rammer, and in directing that respondents certify as eligible for the position of rammer only persons appearing on the paver list, but its order should be modified as hereinafter provided.
The order of the Appellate Division, insofar as it reverses the order of Special Term, should be reversed and otherwise affirmed, and the order of Special Term, insofar as reversed by the order of the Appellate Division, should be modified by adding to its fifth ordering clause before the semicolon the words: [148]*148“until a proper rammers’ list is promulgated”, and, as so modified, affirmed, with one bill of costs to the appellants.