
    In the Matter of Richard T. Cahill, on Behalf of Himself and Others Similarly Situated, Petitioner, against Edwin F. Radel et al., as Members of the Board of Police Commissioners of the City of Kingston, et al., Respondents.
    Supreme Court, Special Term, Albany County,
    November 24, 1958.
    
      
      Matthew V. Cahill for petitioner.
    
      William A. Kelly, Corporation Counsel, for respondents.
   Harry E. Schirick, J.

This application is made pursuant to article 78 of the Civil Practice Act for an order directing the Board of Police Commissioners .of the City of Kingston to cancel certain appointments to the police force and for other relief incidental thereto. The petitioner, who was third upon an eligible list of 26 promulgated by the Municipal Civil Service Commission on May 13, 1958 as a result of a competitive examination, contends that the appointments as made violate rule VIII of the Buies for the Classified Civil Service prescribed by the Civil Service Commission of the State of New York.

Bule VTII prohibits the passing of more than two names from the head of an eligible list. The petitioner claims this has been done. The respondents deny it.

On June 24, 1958 five appointments were made of candidates placed second, fourth, fifth, sixth and seventh on the eligible list. Such appointments passed over only two candidates, namely, numbers one and three, and were in all respects lawful and proper. It appears, moreover, from the uncontroverted proof, that the candidate occupying position No. 1 on the list is physically incapacited from performing the duties of a policeman, at least temporarily. For the duration of such incapacity his name may be omitted from consideration (Civil Service Law, § 14, subd. 4). In effect, therefore, only one name was passed over in the appointments made on June 24.

On July 28, 1958 six additional appointments were made from the list, namely, numbers 9, 10, 12, 13, 14 and 15. At this point numbers 3, 8 and 11 appear to have been passed. Since No. 11 has requested that he be passed for business reasons of his own, these appointments complied with the rule.

Subsequent appointments made on September 10 and September 18, 1958 were all of eligibles bearing numbers 16 to 26 inclusive.

It appears, therefore, that only eligibles bearing numbers 3 and 8 have been passed. This is permitted by law.

The petition is dismissed, without costs.  