Majority
p. 1053The People of the State of New York ex rel. Francis E. Burns, Respondent, against John A. Lyons, as Commissioner of the Department of Correction of the State of New York, Appellant.
Memorandum: The State Civil Service Commission, at the request of appellant, certified the names of three guards for promotion to the position of sergeant in their graded order, namely: (1) Wilkins, (2) Burns (petitioner-respondent) and (3) Johnson. All had passed competitive civil service examinations for the position and had
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claimed and received a preference as disabled war veterans (Civil Service Law, § 21; Rules for Classified Civil Service, rule XI, subd. 1). We think that subdivision 2 of rule VIII, applied, and gave to appellant the right to select any one of these three disabled veterans and that the appointment of Johnson was valid. All concur. (The order directs defendant to appoint petitioner to the rank of sergeant in the Department of Correction.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.