Goldstein v. Lang

Appeal from an order of the Snpreme Court at Special Term, entered August 1, 1963 in New York County, which granted an application by petitioners to annul the determination by respondents terminating the promotional eligible list for the position of Court Clerk, which was established on or about October 25, 1961. Per Cwriam. The opinion of Mr. Justice Gellinoff at Special Term adequately describes the constitutional and statutory bases for granting the relief sought by petitioner-eligibles. Only one aspect of the matter raised by the opinion of the dissenting Justices in this court requires further comment. The statute (Civil Service Law, § 56) provides the circumstances under which an eligible list may be terminated. Concededly the statute in the instant ease did not accomplish the termination of the eligible list in question. Indeed, appellants seek to avoid the effect of the statute by arguing a tortuous and strained construction of the statutes providing for court reorganization. ( Judiciary Law, §§ 212, 223.) Moreover, if the court reorganization or any other statute or circumstances had effected the termination of the eligible list in suit, then it would not have been necessary for the Judicial Conference to issue its command and for the Civil Service Commission to obey the mandate in terminating the list. The recognition of a need for such action implies [484] necessarily a recognition that the list survived. In addition, the Judicial Conference and the Civil Service Commission by their conduct with respect to other eligible lists subject to the same alleged infirmities under the Constitution and the statutes have acted inconsistently in those instances. They have continued the effect of the eligible lists and have continued to make appointments from them to courts which have been absorbed into new reorganized courts. Accordingly, the order should be affirmed, without costs.