The opinion
Order affirmed, with costs; no opinion.
Concur: Loijghrax, Ch. J., Lewis, Coxway and Froessel, JJ.; Desmond, Dye and Fuld, JJ., dissent in the following memorandum: Section 2520 of the Education Law limits eligibility for the position of director of the bureau of attendance to those in a lower supervisory grade in that bureau. In our view, however, it does not — and cannot constitutionally (N. Y. Const., art. V, § 6) — compel the appointing power — here the board of superintendents of the New York City board of education — to select a person who, in the reasonable judgment of the board, and based upon a proper and permissible noncompetitive examination,\is not qualified to fill such a position. Accordingly, we find no basis or warrant for an order mandating the board to make an appointment from among a group deemed by it to be unqualified. We would reverse the order and dismiss the petition.