
    Lucretia B. Andrews et al., Appellants, v. John R. Beaudoin, as Commissioner of the Rensselaer County Department of Social Services, Respondent.
   Appeal from a judgment of the Supreme Court, Rensselaer County, in a proceeding brought pursuant to article 78 of the CPLR, dismissing appellants’ application to compel respondent to return two foster children to appellants’ custody, to restrain respondent from removing two other foster children from appellants’ home and to permit appellants to adopt the four children herein involved. Appellants contend that respondent improperly ignored subdivision 1-a of section 374 and subdivision 3 of section 383 of the Social Services Law in removing two of the children from the foster home operated by appellants' Andrews and in offering all four for adoption in disregard of their preferential rights. There is no allegation in the petition that the appellants have applied to such authorized agency (Rensselaer Social Services) for the placement of said children with them for the purpose of adoption-. Section 400 of the Social Services Law gives the Commissioner of Public Welfare the power to remove any child from a foster home subject to the right of any person aggrieved by such action to apply to the Department of Social Services for a fair heating to review the action of the Commissioner. A fair hearing was requested by the appellants as to the removal of the two children and the threatened removal of the other two, but was adjourned with the consent of both parties. This obviously was their correct course of action following the Commissioner’s action and should have been finalized. Nor had the appellants submitted formal adoption applications, which concededly they could still do even as to the removed children without any loss of preferential rights as a result of the removal they might otherwise be entitled to. The petition was accordingly properly dismissed. We decide no other issues. Judgment affirmed, without costs. Herlihy, P. J., Greenblott, Simons and Reynolds, JJ., concur; Staley, Jr., J., not voting.  