(dissenting). While I concur in the holding that.! the petitioners had the right to seek the relief prayed for, I disagree with the conclusion upholding the determination of the civil service t commission that the list promulgated for automobile engineman' is an appropriate list from which to fill the positions of street car: operators. What has occurred here was condemned by this court in Matter of Krapp v. Kern (255 App. Div. 305; affd., 281 N. Y. 617). There we pointed out that section 14 of the Civil Service Law did not warrant the use of an eligible list as appropriate if the persons on such fist had not been examined as to their ability to' perform the duties of the position to be filled. There, as here, those on the list held appropriate were subjected to an additional test! or course of training to see if they could assimilate the new duties i involved in the positions to be filled. We held this practice to be violative of the constitutional and statutory requirements for open, : competitive examinations. i
The defendants admit that, in order to ascertain whether persons on the list for automobile engineman (chauffeur) can operate trolley cars, it is necessary to give them twenty hours’ training, and even then, in some instances, candidates fail to qualify. (The-petitioners place the period of training at eighteen days or more.) j
Because one can operate, or is familiar with, the mechanism of an automobile, it does not follow that he can operate, or is familiar with, the mechanism of a street car. By the same reasoning, an examination for chauffeur would not be a test for fitness as a street car operator. The vehicles to be operated are substantially different mechanically, and the duties of the two positions have but little similarity. If the list for automobile engineman is to be used for filling positions of street car operators, it may be used for the appointment of subway motormen. >
*573Assuming that the motives of the civil service commission are of the best, in that they desire to avoid the expense of an additional competitive examination' and to anticipate a possible discarding of street cars in favor of buses, the existence of such motives would not justify a disregard of the requirement that competitive examinations be open, except in the case of promotions, and must be appropriate tests of merit and fitness. To attempt to qualify those on a list for positions substantially different from those for which they were examined is, in effect, to hold a qualifying examination limited to persons on an eligible list. It is neither an open examination nor a competitive test of merit and fitness. '
As the holding of a competitive examination for street car operators is clearly feasible, the petitioners are not entitled to all of the relief which they seek, but are entitled to an order directing the defendants to desist from appointing automobile engineman eligibles to the positions of street car operators.
The order should be reversed, and the motion granted to the extent indicated.
Martin, P. J., concurs.
Order affirmed, with twenty dollars costs and disbursements.