
    In the Matter of Andrew P. Dolan et al., Petitioners, against Alexander A. Falk et al., Constituting the Civil Service Commission of the State of New York, Respondents.
    Supreme Court, Special Term, Albany County,
    September 8, 1959.
    
      
      Andrew P. Dolan and Herbert P. Kurts, petitioners in person.
    
      Louis J. Lefhowits, Attorney-General, for respondents.
   Habby E. Schibick, J.

This proceeding is brought pursuant to article 78 of the Civil Practice Act for an order directing the Civil Service Commission to correct an eligible list promulgated following a competitive examination.

The announcement of the examination stated that credits for seniority would be added on the basis of .30 points for each year of permanent competitive service.

The petitioner Dolan, whose name appears as No. 6 on the list, received the same score as No. 5. He had 4 years, 10 months and 25 days of prior service as against 3 years, 11 months and 25 days for No. 5.

The petitioner Kurtz, whose name appears as No. 9 on the list, had the same examination score as No. 7 and No. 8. His prior service was 4 years, 10 months and 10 days as against 3 years, 11 months and 25 days for No. 7 and No. 8.

The inequity indicated by the foregoing recital is justified by respondents in the name of administrative simplicity. Their practice is to ignore months or parts thereof in computing years of service. Where, however, the anniversary of service falls within the same month as the examination, the candidate receives credit for the full year and the deficiency in part of the month is overlooked. As a result, the candidates whose names appear on the list as No. 5, No. 7 and No. 8 each received a bonus of 5 days to make 3 years, 11 months and 25 days the equivalent of 4 years. The petitioners, on the other hand, lost the benefit of 10 months and 25 days, and 10 months and 10 days, respectively.

To make matters worse, the tie thus created was resolved against the petitioners because the tied names were arranged on the list in alphabetical order. Respondents’ statement that this is of no moment must be weighed against the tendency of appointing officers to make appointments in the order in which the names appear upon the list.

The result appears to this court to be manifestly unfair and to contravene the principles underlying the competitive civil service. Administrative simplicity does not justify such inequity.

The petitioners are entitled to the relief prayed for.

All papers to Attorney-General for filing with order.  