
    In the Matter of Arthur F. Carruthers et al., Respondents, against Board of Superintendents of the Board of Educacation of the City of New York et al., Appellants.
    Argued January 4, 1951;
    decided March 8, 1951.
    
      
      John P. McGrath, Corporation Counsel (Arthur H. Kahn and Seymour B. Quel of counsel), for appellants.
    
      Samuel D. Smoleff for Citizens Union of the City of New York, amicus curiae, in support of appellants’ position.
    
      Shad Polier and Louis H. Poliak for Public Education Association and others, amici curice, in support of appellants’ position.
    
      A. Mark Levien for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loijghrax, Ch. J., Lewis, Coxway and Froessel, JJ.; Desmond, Dye and Fuld, JJ., dissent in the following memorandum: Section 2520 of the Education Law limits eligibility for the position of director of the bureau of attendance to those in a lower supervisory grade in that bureau. In our view, however, it does not — and cannot constitutionally (N. Y. Const., art. V, § 6) — compel the appointing power — here the board of superintendents of the New York City board of education — to select a person who, in the reasonable judgment of the board, and based upon a proper and permissible noncompetitive examination,\is not qualified to fill such a position. Accordingly, we find no basis or warrant for an order mandating the board to make an appointment from among a group deemed by it to be unqualified. We would reverse the order and dismiss the petition.  