
    The People of the State of New York ex rel. Charles S. Fowler et al., Respondents, v. Henry Moskowitz et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    
      People ex rel. Fowler v. Moskowitz, 175 App. Div. 710, affirmed.
    (Argued February 28, 1917;
    decided March 20, 1917.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 22,1916, which modified and affirmed as modified an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendants to admit the relators and others similarly situated to a competitive examination for the position of chief examiner, civil service commission. The petitioners are two among more than ten examiners employed in the municipal civil service commission at a per diem rate of compensation. • The commission also employs about an equal number of examiners at a per annum rate of compensation, and three assistant chief examiners on annual salaries. The municipal civil service commission had determined to hold a promotion examination in connection with the filing of a vacancy in the position of chief examiner open only to the three assistant chief examiners in the employ of the commission, thus excluding both the per annum and per diem examiners in its employ.
    
      Lamar Hardy, Corporation Counsel (William E. C. Mayer, Terence Farley and Elliot S. Benedict of counsel), for appellants.
    
      Frank Gallagher, Howard A. Sperry and Elmer G. Story for respondents.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Oh. J., Chase, Cuddebacic, Hogan and Andrews, JJ. Dissenting: Pound and McLaughlin, JJ.  