APPEAL from that part of a resettled order of the Supreme Court at Special Term (GOLD, J.), entered August 20, 1954, in New York County, which denied a motion by petitioners for an order pursuant to article 78 of the Civil Practice Act setting aside a determination of respondents constituting the municipal
civil service commission of the City of New York granting retroactive seniority credit to interveners-respondents.
Paul Windels of counsel (John K. Clark, Jr., with him on the brief; Wickes, Riddell, Bloomer, Jacobi & McGuire, attorneys), for appellants.
Anthony Curreri of counsel (Seymour B. Quel with him on the brief; Adrian P. Burke, Corporation Counsel, attorney), for respondents.
Leo Brown for interveners-respondents.
This appeal involves the seniority rights of interveners-respondents, who are civil service employees in the department of correction of the city of New York. The seniority rights afforded them affect their relative standing on a promotion list for 'Captain' of correction officers in that department.
The promotion list was promulgated on June 17, 1953. Petitioners, McQuillan, Jones and Lance, respectively, placed 4th, 5th and 16th on said list. Respondents, Tubman, La Courte and Judge placed 34th, 35th and 40th, respectively. Nevertheless, on February 16, 1954, the civil service commission granted retroactive seniority credits which would advance respondents ahead of petitioners. These retroactive credits were based upon respondents' alleged rights as disabled veterans.
We think that the grant of seniority credits was based on a misconstruction of the provisions of the Constitution and the Military Law relating to veterans' preferences and of our recent decision in Matter of Farrell v. Watson (279 App.Div. 376, affd. 304 N.Y. 630).
In 1943, respondents took a civil service examination for 'officer' in the department of correction, which resulted in an eligible list promulgated on September 14, 1943. They placed in relative standing as follows: Tubman--494th; Judge--702d; and La Courte--724th. Shortly thereafter, during the early months of 1944, respondents entered military service. While they were in service, appointments were made from the list of September 14, 1943. Some of the appointees were nonveterans, but all of them were much higher on the list than respondents. Thereafter respondents were discharged from military service as follows: Judge late in 1944; La Courte in 1945; and Tubman early in 1946. Each respondent was duly certified as a disabled veteran, and during 1946 they were each appointed as such veterans to the position of 'officer' from the list of 1943. In 1947, a promotion examination was held for the higher position of Captain. Respondents were declared
ineligible because they had less than three years' service as required by the conditions for examination. From time to time they protested that they should have received seniority rating from the date in 1944, after their entry into the military service, when the first nonveteran was appointed from the 'officers' list. Those nonveteran appointments had been made in April and May, 1944, shortly after these respondents had entered military service.
At the time of appointment of respondents, subdivision 7 of section 246 of the Military Law (now § 243, subd. 7), read as follows: 'Any person, whose name is on any eligible list shall, while in military duty, retain his rights and status on such list. * * * Any such person appointed from such eligible list * * * shall, for the purpose of computing seniority credit and training and experience credit for promotion * * * be deemed to have been appointed on the earliest date upon which ...