Petitioner, a lawyer, entered the public service when appointed Assistant Counsel in the Department of Public Service (Transit Commission) on September 16, 1936, and was therein later reclassified to the rank of Senior Attorney, which position, on June 18, 1940, was changed from the exempt to the competitive class. He continued to hold this latter position until the Transit Commission was abolished in April, 1943, but he then served on with the State Public Service Commission until October 1, 1943, when, not having been certified by the chairman of the latter commission as being necessary to the functioning of that department, his name was entered upon the appropriate state civil service list “ pursuant to the civil service law ” and he then became “ eligible for appointment ” therefrom “ pursuant to such law.” (L. 1943, ch. 170, § 3 and ch. 238.)
For none of the positions just stated was petitioner obliged to nor did he take any civil service examination. His incumbency in such service alone brought about his present status as being on a preferred list from which he claims the right to be appointed to the position of Senior Attorney in the Department of Taxation and Finance. The appellants have ruled that he is not so entitled. The order appealed ' from annuls that determination and directs his certification for said appointment. We must recognize that petitioner is not entitled to the order appealed from unless the proofs show, and show clearly, that, pursuant to law, he is eligible for such appointment by virtue of his name’s being on his present preferred list, because the relief sought herein is in the nature of mandamus.
The determinative test of eligibility is provided by statute, viz., whether for the two positions which are to be compared, *364the entrance requirements are identical or similar. If they are, then the preferred list, upon which only the relator’s name now appears, exists as the one from which the appointment he seeks must be certified. (Civil Service Law, § 31.)
The proofs submitted uphold the affirmative of the question by showing that petitioner holds the grade of “ Senior Attorney ” in the professional group of the competitive class in the category of legal practice as classified under the Civil Service Law, and that therein his practice and experience were, as shown, in the State Department of Public Service (Metropolitan Division — Transit Commission) and for a few months in the State division of that Department of the State government. Upon these proofs petitioner rests his contention that, as a matter of law, appellants were precluded from determining, as they did, that the requirements for entry to the position of Senior Attorney in the Department of Taxation and Finance were not the same or similar to those for entry into the position he lost. The argument for this reduces down to the proposition that any position of the grade of “ Senior Attorney ” in the competitive class in the legal service of any State department, stamps the entrance requirements for such positions the same or similar. No claim is made or at least seriously advanced that either the particular kind of legal service petitioner performed for the Transit Commission or the kind of specialized legal knowledge requisite therefor, are the same or similar to that which is called for in the position he seeks. This proposition seems advanced upon the ground that any lawyer who has demonstrated the proficiency to have achieved such a grade has thereby conclusively shown a mastery of legal knowledge which adequately qualifies him to serve in that grade in any. State department, and thus that the Civil Service Commission may not test him objectively as to his knowledge in any highly developed and specialized field of law, even though the position in question may call for the performance of legal services exclusively within such field; and thus, that one having attained the grade of “ Senior Attorney ” is conclusively presumed to possess all such requisite knowledge and to be adequately qualified to apply it and practice it whenever and wherever called upon by his superiors in any such department. As opposed to this the appellants urge that it was within their province to determine, as they have, that the decided difference in the subject matter of the specialized legal knowledge requisite for a Senior Attorney in the Department of Taxation and Finance, from that required *365of such a one in the Department of Public Service (chiefly the Transit Commission) is such as to call for wholly different entrance requirements; and that under the statute and by the State Constitution they are mandated to apply the prescribed objective tests as to merit and fitness. It is my opinion that we may not correctly say, as a matter of law, that the latter thesis is without merit. The furthest I feel we may go is to recognize that the question presented as to difference in entrance requirements is a troublesome one and that it may be a close one, and presents a situation where there is room for a fair and reasonable “ difference of opinion among intelligent and conscientious officials.” In such a case it has been authoritatively held that “ the action of the commission should stand, even though the courts may differ * * * as to the wisdom of the classification.” (People ex rel. Schau v. McWilliams, 185 N. Y. 92, 99.) Thus, since the action of the appellants has not been shown to have been palpably erroneous or illegal, it should not have been disturbed. The order should be reversed and the petition dismissed.