
    In the Matter of the Application of Adolph C. Rohl, Petitioner, Appellant, for an Order of Mandamus against Thomas W. H. Jeacock, as Commissioner of Department of Social Welfare, Erie County, New York, and Grace H. Reavy and Others, Constituting the Civil Service Commission of the State of New York, Respondents.
    Fourth Department,
    March 21, 1940.
    
      McDonough & Boasberg [Charles J. McDonough of counsel], for the appellant.
    
      Paul J. Batt [Elmer R. Weil of counsel], for the respondent Thomas W. H. Jeacock, as commissioner, etc.
    
      John J. Bennett, Jr., Attorney-General [James P. Cotter, Assistant Attorney-General, of counsel], for the respondent' Civil Service Commission.
   Per Curiam.

Petitioner, on January 3, 1930, received a provisional appointment as relief agent, salary $1,800, in the department of social welfare, Erie county, pending the establishment of an eligible list by competitive examination. An examination was held which petitioner passed with a mark of 78.40 and was placed as No. 16 on the eligible list. On January 8, 1932, at least three eligibles, having a higher standing than petitioner, were offered the position of relief agent for a temporary period of approximately five months ” and declined temporary appointment but indicated that they would accept permanent appointment. Petitioner accepted and received the temporary appointment on January 22, 1932. The State Civil Service Commission, pursuant to requests of the Erie county social welfare department, granted extensions of petitioner’s temporary appointment for periods of approximately six months each until May 18, 1934, when it declined to grant a further extension because the eligible fist in question had expired on April 30, 1934. Thereafter, in 1934 and 1938, petitioner took competitive examinations for the position of relief agent but failed to receive a passing mark. On August 13, 1934, the State Civil Service Commission approved petitioner’s provisional appointment to the position of relief agent pending the establishment of an eligible list therefor, which employment thereunder terminated August 19, 1935, after which petitioner was employed in the Erie county emergency relief bureau, which was established pursuant to chapter 798 of the Laws of 1931, and discontinued on June 30, 1937, since which time petitioner has been employed by the Erie county social welfare department on a temporary basis until such time as a new eligible fist is established or present positions are abolished.

On the foregoing facts we are of the opinion that petitioner neither holds a valid permanent appointment to the position of relief agent nor is entitled to be certified by the State Civil Service Commission as eligible for appointment pursuant to the rules and regulations of the Civil Service Commission and the Civil Service Law. A provisional or temporary appointment does not ripen into a permanent appointment. (See Palmer v. Board of Education, 276 N. Y. 222; Koso v. Greene, 260 id. 491, 495.)

The order should be affirmed, without costs of this appeal to either party.

All concur, except Harris, J., who dissents and votes for reversal and for granting the prayer of petitioner in a memorandum. Present — Crosby, P. J., Cunningham, Taylor, Harris and McCurn, JJ.

Harris, J.

(dissenting). In making the appointment of January 22,1932, the appointing power had no right to designate the position as temporary. The petitioner was selected in regular order from a list after those persons whose names preceded his on the fist had declined the appointment. Such appointment was at first probationary and then ripened into a permanent position. (Matter of Hilsenrad v. Miller, 259 App. Div. 763.) The order appealed from should be reversed and the petitioner should be reinstated and paid his salary for the time he was not permitted to occupy the position.

Order affirmed, without costs of this appeal to either party.  