The opinion
Murphy, P. J.,
dissents in a memorandum as follows: As the majority memorandum notes, this is a CPLR article 78 proceeding in the nature of mandamus. The law in this area has been succinctly stated in Matter of Colonial Beacon Oil Co. v Finn ( 245 App Div 459, 461 , affd 270 NY 591 ): “A peremptory order of mandamus may be granted only to enforce a clear legal right. The mandamus issues to compel the performance of official duty clearly imposed by law, where there is no other adequate specific remedy. The duty must be positive, not discretionary, and the right to its performance must be so clear as not to admit of reasonable doubt or controversy. (Matter of Burr v. Voorhis, 229 N.Y. 382 .) A peremptory order of mandamus may not be indefinite. It may not leave a wide discretion as to that which is ordered to be performed. Its function is to compel the doing of a specific thing based upon a legal right. (People ex rel. Delaney v. Interborough Rapid Transit Co., 192 App. Div. 450.)” Upon respondents’ motion to dismiss for failure to state a cause of action, the averments in the petition must be accepted as true. These averments, if established by appropriate proof, would warrant the issuance of an order of mandamus. Specifically, the petitioners charge that respondents knew that further appointments to the New York City Police Department (N.Y.C.P.D.) would be made from list No. 8155 at the time that respondents’ officers informed them that the list was about to expire. Petitioners allege that they were deliberately misled into choosing the Transit Authority Police Department (T.A.P.D.) so that respondents could select additional minority candidates with lower test scores for N.Y.C.P.D. Petitioners maintain that their civil service rights under section 6 of article V of the New York State Constitution and section 50 of the Civil Service Law have been violated. They ask this court to rectify the wrong which they have suffered by directing their transfer from the T.A.P.D. to the N.Y.C.P.D. At question is not the validity of the Federal compromise that permitted the ratio hiring of minorities from this list. At issue are the tactics employed by the respondents in attempting to honor the Federal compromise. Even if it were assumed that the Federal compromise permitted respondents to select minorities with lower test scores than those of petitioners, the subterfuge allegedly employed by respondents gave preferential treatment to many nonminorities with test scores lower than petitioners’ scores. Section 6 of article V of the New York Constitution opens with the following language: “Appointments and promotions in the civil *416 service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive”. This constitutional provision is implemented by the following portions of sections 50 and 61 of the Civil Service Law: “§ 50. Examinations generally. 1. Positions subject to competitive examinations. The merit and fitness of applicants for positions which are classified in the competitive class shall be ascertained by such examinations as may be prescribed by the state civil service department or the municipal commission having jurisdiction”. “§ 61. Appointment and promotion. 1. Appointment or promotion from eligible lists. Appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion”. In asserting a violation of the above-cited sections, petitioners do not allege that respondents’ officers, who notified the petitioners, acted without authorization (see 21 NY Jur, Estoppel, § 81, p 118). Petitioners maintain that the officers, at the direction and behest of the respondents, carried forth a hiring policy in direct violation of the civil, service hiring law. A violation at this administrative level would justify the extraordinary relief provided by mandamus. The arguments raised by respondents for dismissing the petition for legal insufficiency are meritless. The first argument is apparently advanced by respondents upon the assumption that they violated the “merit and fitness” provisions in the civil service area. Essentially, respondents contend that officers in the T.A.P.D. have substantially similar benefits and conditions of employment as their counterparts in the N.Y.G.P.D. Hence, respondents maintain that petitioners have not been injured. The petitioners have alleged more than a violation of a technical right; their injury is not de minimis. While some candidates on the list might have preferred service with the T.A.P.D., the petitioners did and do prefer service with the N.Y.G.P.D. Because of their superior position on the list, petitioners’ preference would have been realized but for the misrepresentation of respondents and their agents. The courts should not permit administrative officers to manipulate appointments from a list according to their whims of a particular moment. The civil service system is specifically aimed at preventing arbitrary conduct of this sort. Statutory provisions regulating appointments under civil service acts are mandatory and must be complied with strictly (19 NY Jur 2d, Civil Servants, § 295, p 136). If petitioners prove their case, they should be granted the requested relief (i) in order to rectify the present wrong and (ii) to signal other administrators that similar violations will not be tolerated. Respondents, as a second argument, assert that petitioners cannot compel the police commissioner to appoint them. This is not a proceeding where petitioners, in the first instance, are requesting the courts to compel an appointing authority to select their names from a list. (Matter of Berger v Walsh, 291 NY 220 ; Matter of Delacati v Schechter, 3 AD2d 19 .) The petitioners, otherwise qualified for both the N.Y.G.P.D. and the T.A.P.D., allege that they were “hoodwinked” into accepting positions with the T.A.P.D. Again, if the petitioners prove these allegations to be true, they will have shown a clear violation of their rights under the civil service system. The courts, in the exercise of their equitable powers in this mandamus setting (Matter of Cromarty v Leonard, 13 AD2d 275, 287 , affd 10 NY2d 915 ), should then direct that the respondents provide petitioners with the positions that they would have received if their rights had not been violated (cf. Matter of Kraus v Singstad, 275 NY 302, 311 ). Respondents’ third point in support of a dismissal is that petitioners chose to become members of the T.A.P.D. Therefore, it is asserted that their names were properly removed from the list. This *417 argument totally begs the basic question presented. Petitioners’ choice was neither voluntary nor intelligent if they were actively misled by respondents. The respondents also moved to dismiss the petition upon the ground that it was barred by the four-month Statute of Limitations (CPLR 217). The respondents had the burden of proving this affirmative defense (Doyon v Bascom, 38 AD2d 645 ). The petitioners were required to bring this proceeding within four months after their demand for a transfer into N.Y.C.P.D. (CPLR 217). No formal demand was made by petitioners prior to the service of the petition on October 2,1981. The petition must thus be considered the demand for Statute of Limitations purposes (cf. Matter of Moskowitz v La Guardia, 183 Misc 33, 40 , affd 268 App Div 918 , affd 294 NY 830 ). Since no formal demand was made prior to the service of the petition, the more narrow issue presented is “when” should petitioners have made the demand. It is settled law that a demand must be made within a reasonable time after the right to make the demand occurs or, where a petitioner has been misled by a respondent, within a reasonable time after the petitioner becomes aware of the facts giving rise to his right of relief. If petitioner does not proceed promptly with his demand, he may be charged with laches. (Matter of Devens v Gokey, 12 AD2d 135, 136, 137 , affd 10 NY2d 898 .) On January 26,1981, respondents hired additional individuals for the N.Y.C.P.D. from this list. There is some indication that this new hiring from the list received some coverage in the media. The respondents do not detail the nature and extent of the media coverage. From the record, it is unclear when each petitioner actually learned that these new appointments were being made. It is very possible that some of the petitioners learned of the event immediately. Others may not have learned of the new hiring until the summer months of 1981. In deciding the last date upon which a demand should have been made, a hearing should be held so that all relevant facts may be developed. If petitioners show that respondents made deliberate misrepresentations with regard to the life of the list, then petitioners must be accorded greater leeway with regard to the issue of laches. The respondents have not carried their evidentiary burden of showing that the Statute of Limitations issue may be resolved on these papers. I agree with Special Term that the petition should not be dismissed and that a full hearing should be held on the defense of Statute of Limitations. However, I would modify Special Term’s order by permitting respondents to answer if they are not successful in dismissing the entire petition on that ground. The hearing court, if so advised, may permit petitioners to depose the respondents upon matters within their exclusive knowledge before the hearing is held.