The opinion
Kellogg, J. (concurring in result):
I concur in the result reached by the presiding justice, but not for the reasons stated. I think it is not necessary that an applicant for transfer be among the first three names upon the eligible list. *768 In that case he would be a subject for original appointment and the transfer means nothing, and such an interpretation deprives the transfer, to which a good deal of attention is given in the law, of any real force. Section 16 of the Civil Service Law provides that a transfer or promotion shall not be made “ unless the same be specially authorized by the State or Municipal Commission.” The Commission has refused its authority in this case and, therefore, the transfer cannot be made. It had the power, in my judgment, to approve of the transfer, but was called upon to exercise a discretion. It exercised that discretion against the relator.
Matter of Peters v. Adam ( 56 Misc. Rep. 29 ) is not opposed to these views. There Peters sought a mandamus to compel the payroll to be certified, and a second mandamus requiring the position to be transferred to the exempt class. The court says (at p. 32): “ The commissioner of public works thereupon continued Peters in office, fairly assuming that the commission thus recognized and authorized the transfer; and it seems to me that this was the reasonable construction of the commission’s action and quite likely its intention at the time.” In that case the Commission was required to certify three persons for appointment under the eligible list; it certified four persons, Peters being the fourth, and the court felt that by certifying him in that way they had specially authorized his appointment to the place. But the court held directly that the office was in the exempt class. Being in the exempt class Peters appointment was regular; he was entitled to have his payrolls certified and he obtained the relief asked. I do not consider that case as authority that the commissioners have not discretion; it simply holds, as I read it, that they exercised their discretion in favor of Peters.
I concur in reversal.
Order reversed, with costs, and motion for a mandamus denied, without costs..