(dissenting). As the result of an open competitive examination, respondents promulgated an eligible fist for the position of accountant, grade 2. Petitioner, who was on this fist, claims that appointments of eligibles thereon are being illegally blocked by respondents who have certified and intend to certify names from the later established city-wide promotion fists to positions of junior accountant and accountant, grade 2, in departments other than those in which the persons on the promotion fists are presently employed. Eligible fists resulting from city-wide promotion examinations were established by respondents as follows: (1) two city-wide fists; (2) departmental fists which are subdivisions of the city-wide fists and are made up of names of eligibles thereon who were rendering service in various departments of the city, there being a separate departmental fist for each department.
The departmental promotion fist for the particular positions in the city department to which the certifications have been made here was first exhausted. It is not contended that the certifications which respondents contemplate making from the city-wide promotion fists will be made in any instance to a department while there is available or while there might be made available, a promotion fist for that department which is appropriate for certification to the specific positions.
The question thus presented concerns the right of the municipal civil service commission to promulgate city-wide promotion fists and to utilize them for purposes of transfer or promotion to higher *41positions in other city departments after appropriate departmental lists have been exhausted.
The purpose of the Constitution (Art. V, § 6) and of the Civil Service Law (§§14,16) quite clearly is to favor promotions of those already in the city service over appointments of persons who have had no such experience and who, under ordinary conditions, are not as well fitted by training or experience for promotion or transfer.
Section 14 of the Civil Service Law contemplates appointments “ by promotion, reinstatement, transfer or reduction ” before any appointments are made from an open competitive eligible list. It also provides that “ Appointments shall be made from the eligible list most nearly appropriate for the group in which the position to be filled is classified.”
It is commanded by section 16 of the Civil Service Law that “ Vacancies in positions in the competitive class shall be filled, so far as practicable, by promotion from among persons holding positions in a lower grade in the department, office or institution in which the vacancy exists.” The fourth sentence of the same section reads: “ Promotion shall be based upon merit and competition and upon the superior qualifications of the person promoted as shown by his previous service, due weight being given to seniority.” (Italics ours.) The statute thus recognizes the importance of previous service; it does not require a previous record in the same department in which promotion is to be made.
Reading sections 14 and 16 of the Civil Service Law together, it is quite manifest that the object of the statute is to require that vacancies in the competitive class shall be filled so far as practicable by promotion from among those holding positions in a lower grade in the given department, office or institution in which the vacancy exists, but if such vacancies cannot be filled by promotion from among persons holding positions in a lower grade in the given department, office or institution, an existing city-wide promotion list containing names of persons holding positions in other departments may, in the exercise of respondents’ discretion, be utilized as the most nearly appropriate list. A ruling to that effect by respondents, in the circumstances presented here, may not be regarded as arbitrary.
Ordinarily the courts will not interfere with the determination of the municipal civil service commission as to whether a specific eligible list is appropriate for the filling of positions, and it is only where the commission’s determination is whimsical, capricious or arbitrary, or made in bad faith, that its decision will be denied finality. (Matter of Forman v. Kern, 257 App. Div. 946; affd., 282 N. Y. 583', Matter of Sheridan v. Kern, 255 App. Div. 57, 59.)
*42The use of a city-wide promotion list was approved by this court and the Court of Appeals in Matter of Abrams v. Kern (281 N. Y. 787, affg. 257 App. Div. 819). In that case a proceeding had been instituted by eligibles on a city-wide promotion list for clerk, grade 3, to compel the department of public welfare to make certifications and appointments to corresponding positions held by provisional employees in the department of public welfare. There it was urged by the provisionals that the use of a city-wide promotion list violated the provisions of the Civil Service Law. The Court of Appeals affirmed an order compelling certifications and appointments to the vacancies from the city-wide list.
The rights of persons holding positions of a lower grade in the department are not involved in this proceeding. We are concerned here only with the claims of a person who does not hold a position in the civil service but who seeks original entrance therein. Respondents may not be compelled to appoint him from an open competitive list in preference to those who now have positions in the public service in other city departments and who have won places on the city-wide promotion lists in competitive examination and after satisfactory service to the city.
In the circumstances of this case, the Special Term correctly held that respondents were authorized to use for promotion and transfer to the positions of junior accountant and accountant, grade 2, in the emergency revenue division of the Comptroller’s office, the city-wide promotion fists as the most nearly appropriate ones, rather than to employ an open competitive fist for that purpose.
The orders should be affirmed, with twenty dollars costs and disbursements.
Orders modified, as indicated in opinion by Callahan, J., and as so modified affirmed, with twenty dollars costs and disbursements to the appellant. Settle order on notice.