
    In the Matter of William L. Paroli, Respondent, v. J. Lewis Bolton et al., Constituting the Civil Service Commission of the County of Dutchess, et al., Respondents, and New York State Department of Civil Service, Appellant.
   In a proceeding pursuant to article 78 of the CPLR, inter alia, to annul the competitive classification of the position of investigator in the Dutchess County Public Defender’s Office, the New York State Civil Service Commission appeals from (1) a decision of the Supreme Court, Dutchess County, dated November 30, 1967, denying a motion to dismiss the proceeding for lack of prosecution, (2) an order of the same court, dated February 8, 1968, which denied a motion by said commission to dismiss the proceeding upon an objection in point of law, and (3) a judgment of said court, dated September 18, 1968, which annulled the above-mentioned classification and also the results of the competitive examination given on April 30, 1966 to applicants for such position. Appeals from said decision and said order dismissed, without costs. No appeal lies from a decision. The appeal from the order is academic in view of the determination herein upon the appeal from the judgment. Judgment reversed, on the law, without costs, and petition dismissed on the merits. The Dutchess County Board of Supervisors created the Department of Public Defender which was to consist, among others, of an investigator selected by the Public Defender. The position was classified as competitive. The Public Defender reported the provisional appointment, pending examination, of petitioner as investigator. Petitioner, who had previously been a member of the Poughkeepsie City Police Department, took the competitive examination, without objection, and received a failing grade. Thereafter he commenced the instant proceeding. In our opinion the position of investigator is such that "it is practicable to determine the merit and fitness of applicants by competitive examination” (Civil Service Law, § 44). We are further of the opinion that the representative questions submitted in the record properly tested petitioner to determine whether he had the capacity and fitness to discharge the duties of the position in question. Shapiro, Christ and Benjamin, JJ., concur; Hopkins, Acting P. J., and Brennan, JJ., concur in the dismissal of the appeal from the decision, but otherwise dissent and vote to affirm the order and the judgment, upon the opinion of the late Mr. Justice Hoyt. [57 Mise 2d 952.)  