
    In the Matter of Herbert D. Roistacher, Respondent, v. Thomas F. McCoy, as State Administrator of the Administrative Board of the Judicial Conference of the State of New York, Appellant.
   Appeal from a judgment of the Supreme Court at Special Term, entered August 6, 1971 in New York County, which granted petitioner’s application in a proceeding under CPLR article 78, annulling a determination of the Administrative Board of the Judicial Conference- classifying petitioner as Court Clerk II, and directing that petitioner be reclassified as Court Clerk III. On previous appeal, we reversed and submitted the proceeding to Special Term for an evidentiary hearing (35 A D 2d 644). Since petitioner was re-evaluated to Court Clerk III on July 21, 1971, the issue here is whether the State Administrator, in refusing to upgrade respondent in position title from Court Clerk II to Court Clerk III, acted in an arbitrary, capricious and unreasonable manner so that respondent is entitled to back pay from July 1, 1966. Appellant determined that the distinction between Court Clerk II and Court Clerk III could be largely determined by the number of subordinate employees and the volume of work (see Matter of Hershfield v. McCoy, 37 A D 2d 660). From the testimony taken at the hearings, it appears that the number of persons supervised was the primary basis employed in classifying respondent, and that those classified as Court Clerk III supervised as a minimum more than -four times as many employees as did respondent. This was a valid basis. Thus, respondent’s classification as Court Clerk II was not arbitrary and capricious. Judgment reversed, on the law and the facts, and petition dismissed, without costs. Staley, Jr., J. P., Greenblott, Sweeney, Simons and Kane, JJ., concur.  