
    In the Matter of Charles G. Freund, Petitioner, v. Department of Personnel of the City of New York et al., Respondents.
    Supreme Court, Special Term, New York County,
    February 28, 1973.
    
      A. Bernard King for petitioner. Norman Redliqh, Corporation Counsel, for respondents.
   Abraham J. Gellinoff, J.

This is an article 78 proceeding, in which petitioner seeks to annul his disqualification due to age for the position of Deputy Sheriff.

The applicable notice of examination provided, in pertinent part: “Age requirements: Applicants must be not less than 21 years of age and not more than 34 years old on the date of the written test. * * * Exceptions: * * * (b) in addition all other persons who were engaged in military duty, as defined in Section 243 of the Military Law, subsequent to July 1, 1940, may deduct the length of time, not exceeding a total of six years, which they spent in such military duty from their actual age in determining their eligibility.” It is undisputed that petitioner is entitled to the full six-year deduction. Therefore, at the time of the examination, petitioner, for purposes of eligibility, was 34 years and some 8 months old.

Accordingly, the issue before the court is whether, under the notice of examination, one becomes “ more than 34 years old ” on the day after his 34th birthday, or on the day of his 35th. Using the language employed in other notices of examination as a guide, it becomes apparent that petitioner was not disqualified.

For, in those circumstances in which the birth date listed in the notice is itself the final day of eligibility, the notices specifically so provide. Thus, other notices, furnished by petitioner, have provided:

“ Only persons shall be appointed Patrolman who shall be on the date of the written test less than 29 years of age.
Open only to persons who shall not have passed their 30th birthday:
“At least 18 and under 29 years pf age.”

In the instant case, had respondents sought to eliminate one who had passed his 34th birthday, but had not reached his 35th, they could easily and unambiguously have so provided, as they have done in other such cases. In the absence of such a precise provision, the court must interpret “not more than 34 years old ” as eliminating only those who have reached their 35th birthday.

Accordingly, the petition is granted.  