Evers v. Lang ( 1966 )

Order and judgment (one paper) in proceeding under article 78 of CPLR, granting petition to declare petitioner eligible to compete in a civil service promotion examination, unanimously reversed, on the law, without costs or disbursements to any party and the petition dismissed, without costs or disbursements. The transfer or reassignment of the partially disabled petitioner to the duties of another title and classification, for however long a period, and even if with the title of the second position, did not effect a valid transmutation from one title to another. As argued by respondents-appellants, such a change in title could only be accomplished validly if petitioner qualified for the new title like any other applicant or if the Civil Service Commission determined expressly in a proper proceeding before it that the positions in question and the qualifications therefor were equivalent (cf. Matter of McNamara v. Holling, 282 N. Y. 109; cf., also, Matter of Mandle v. Brown, 4 A D 2d 283, 286, affd. 5 N Y 2d 51). Nor may the Civil Service Rule (rule 6. 1. 8) under which the temporary assignment for petitioner was effected be construed or applied to accomplish such a transmutation of title and classification without incurring a grave constitutional question as to its validity (see N. Y. Const, art. V, § 6; Matter of Williams v. Morton, 297 N. Y. 328, 333). This determination, of course, is without prejudice to any application petitioner may be entitled to make to the Civil -Service Commission for relief on the basis of equivalency or otherwise, on none of which does the court now pass. [49 Misc 2d 227.] Concur—Botein, P. J., Breitel, Rabin, Steuer and Witmer, JJ.