
    In the Matter of the Application of Frank J. Farrell, Petitioner, against Paul J. Kern, President, and Others, Constituting the Municipal Civil Service Commission of the City of New York, and Others, Respondents.
    
    Supreme Court, Special Term, New York County,
    October 13, 1939.
    
      Blake, Stim, Curran & Carlin [Menahem Stim and Frank A. Carlin of counsel], for the petitioner.
    
      William C. Chanler, Corporation Counsel [Charles F. Murphy of counsel], for the respondents."
    
      
       Affd., 258 App. Div. 789.
    
   Miller, J.

The petitioner, presently employed as senior purchasing agent in the department of welfare, makes no claim that he has passed a competitive examination for that position. If, therefore, there is in existence an eligible list, established as the result of competitive examination, appropriate for the filling of the petitioner’s position, he may not complain if he is removed to make place for the person appointed from such a list. (Matter of Britt v. Kern, 277 N. Y. 701; Matter of Ackerman v. Kern, 281 id. 87.) The petition does, it is true, allege that the eligible list from which it is intended to fill the petitioner’s position is not an appropriate list, but this allegation is made upon information and belief without any facts being set forth to justify it. Nor is there any merit in the second cause of action, which proceeds on the theory that because petitioner received an appointment as social investigator as a result of a competitive civil service examination he may not be removed as a senior purchasing agent, a wholly different position, the qualifications for which are not claimed or shown to be the same as those which pertain to the position of social investigator.

The motion is accordingly denied.  