
    Morris Golland, Plaintiff, v. William F. Baker et al., Composing the Board of Municipal Civil Service Commissioners, Defendants.
    (Supreme Court, Kings Special Term,
    December, 1906.)
    Civil service — In general — Eligible lists — Establishing new lists.
    A civil s-rviee rule, relating to eligible lists for the office of inspector of police in the city of New York, which provides that an eligible list that has been in force one year shall terminate whenever a new list is established, does not contravene the provision of the Civil Service Law (L. 1899, ch. 370) that the term of eligibility shall be fixed for each list at not less than one nor more than four years.
    Motion for a preliminary injunction in an action by a taxpayer to restrain the civil service commissioners from holding a new examination and making up a new eligible 'list for the office of inspector of police of the city of ¡Neu York until the present eligible list has been exhausted or until the expiration of four years from its adoption.
    Abraham S. Gilbert, for motion.
    Terence Farley, opposed.
   Kelly, J.

This is not an action by the four police captains, to test the legality of the police commissioner’s action in refusing to appoint them or in failing to fill vacancies in the office of inspector, if such vacancy exists. It is not an action in which the commission’s refusal to give reasons for not appointing the police captains is before the court. The police commissioner is not a party to the action. I express no opinion on these matters.

This is a taxpayer’s suit in which the legality of the action of the civil service commissioners in ordering a new examination of candidates for promotion to inspectorships is attacked. It is said that the term of the existing eligible list has not expired. Buie 3 of the civil service rules provides that the term of an eligible list shall be not less than one year nor more than foimyears from the date of its establishment. “An eligible list that has been in force for one year * * * shall terminate whenever a new list is established under the same title, and, in case of a graded position, for the same grade or grades.”

The. plaintiff taxpayer alleges that the action of the defendant commissioners in ordering a new examination is illegal, because, he says, the rule quoted violates the statute. The existing list has been in force more than one year, but' plaintiff claims, as I understand his argument and brief, that the rules should have fixed an absolute definite period for the life of the list. It could have been made one year, so he concedes, but he says the provision that after it has been in force a year it shall terminate whenever a new list is established is unlawful and puts some power in the civil service board which the Legislature did not intend they should have.

The statute, section 13 of the Civil Service Law, provides: “ The term of eligibility shall be fixed for each eligible list at not less than one nor more than four years.” The rule adopted by the defendants follows the language of the statute. I cannot see how the provision continuing the list after it has been in force a year until a new list is certified renders the rule illegal or how it contravenes the letter or spirit of the statute. The commissioners could have terminated the list in one year. That they gave it longer life is something the persons on the list should not complain, of. They took the examination knowing the list was absolutely good for one year and for one. year only; after that it continues until a new list is certified.

The motion for injunction is denied.

Motion denied.  