(dissenting). This proceeding has been instituted for the purpose of reviewing the action of the Municipal Civil Service Commission, in declining to place the names of petitioners upon a special military eligible list for promotion to the position of train dispatcher in the New York City transit system, to compel the commission to certify their names to the board of transportation for appointment, and also to compel the board to appoint them as train dispatchers with back salary. Petitioners appeal from an order directing a trial of the issues instead of granting summarily the relief demanded in the petition.
The determination of this proceeding depends upon the construction of subdivision 5 of section 246 of the Military Law, and particularly that portion thereof which directs that if a promotional examination is held while a public employee entitled to participate therein is on military duty, he shall be given a comparable examination on request after being honorably discharged, and, if he passes such examination, that his name shall be placed upon a special eligible list to fill subsequent vacancies in the higher position subject to certain conditions. The municipal civil service commission did not place petitioners’ names upon such a list for the reason that they failed to fulfill these statutory conditions. This determination was clearly correct.
The Legislature provided that the name of a veteran should not go upon such a list, notwithstanding that he had passed the comparable examination, unless (1) “ his name would have been reached for certification between the date when he entered upon such military duty and the date that he was officially notified that he had passed such examination or (2) unless “ between the aforementioned dates, any veteran or disabled veteran, as the case may be, who achieved a lesser rating in the examination was appointed from the eligible list or special eligible list by reason of veteran’s preference or disabled veteran’s preference, as the case may be, and further provided that such person is entitled to a preference in like manner.”
The decision of this appeal taken by petitioners depends, upon the interpretation of the contingency described above as (1), viz., whether petitioners would have been reached for *383certification except for their military service. Special Term held that on the basis of the facts stated in the petition they would not have been reached for certification under this clause. The order grants a trial in order to ascertain whether any veteran with a lower rating has been appointed under the contingency numbered (2). Although there is no evidence that any veteran with a lower rating has been appointed, the commission and the board have not appealed. Consequently the only bearing which the second statutory contingency has upon this appeal, is in interpreting the meaning of the first contingency.
The question on which decision of the appeal hinges is whether the promotion of nonveterans with higher merit ratings than petitioners means that petitioners would have been reached for certification if they had not been on military duty. Special Term held correctly, as I think, that in determining whether a soldier would have been reached for certification except for military duty, the Legislature intended him to be placed in as good a situation as though he had not entered the military service, but not in a better situation. The meaning is that honorably discharged veterans shall be placed upon a special eligible list, entitled to veterans’ preferences in promotion to future vacancies, but only if they shall have passed the comparable promotional examination with marks as high as those of nonveterans who were reached for certification when the positions had to be filled. In other words, the idea which the statute expresses, is that the examination taken by veterans after having been honorably discharged, is to be of equal difficulty with the examination which was previously given to the nonveterans who had to carry on in civil life while these soldiers were on duty; that the civilians who actually filled these positions during wartime are not to be superseded by the returned veterans, nor are the latter to be prejudiced due to having been prevented by the war from taking the examination on the basis of which the original list was promulgated. The Legislature compromised this difficulty by directing that if the soldier, after being mustered out of service, does as well upon the comparable examination as the nonveterans did upon the original examination who were reached for certification in his absence, the veteran’s name should be placed upon a special eligible list entitled to veteran’s preference in filling future vacancies. That means that those upon the special eligible list were to be preferred over nonveterans and disabled veterans were to be preferred over other veterans, regardless of their *384relative standings, when positions as train dispatcher became open after the special list was promulgated. But veteran’s preference had nothing to do with who was to go upon this special eligible list under contingency No. (1), any more than it was to count in the grading of the examinations. The Legislature considered that veterans should be entitled to this special opportunity for promotion in the future, only if they could have met the competition for the similar positions which "had to be filled while they were at war. The Military Law does not say that veterans are to go upon a special eligible list merely because of passing a comparable examination; they are entitled to go on the list under this provision only if their marks measure up to the marks on the original examination of those who were reached for certification while petitioners were away. Unless they measure up to that standard, the effect is the same as though they did not pass the examination. Veterans’ preferences have no effect upon eligibility to be placed upon the special list under the portion of the statute which is being considered.
When the original promotional examination for train dispatcher was given in 1945, petitioners were still in the military service. It could not be known then whether they would ever be honorably discharged, nor whether any of them would suffer service connected disability. After names had been placed upon such a special eligible list, veterans’ preferences would count in promotion to future vacancies, but their status either as veterans or disabled veterans would not assist them to go on the list, nor could they go on the list under this portion of the statute unless their marks were at least equal to the marks of those who were reached for certification in their absence.
The contingency in subdivision 5 of section 246 of the Military Law, which has been described above as (2), demonstrates that veteran status is not to be taken into account in applying the contiiigency described as (1). The provision in (2) that “ his name shall likewise be placed upon such special eligible list ” (italics supplied) if any veteran or disabled veteran, previously discharged from the service, shall have been appointed who achieved a lesser rating than petitioners in the examination, would have been unnecessary if petitioners’ contention be correct. The meaning is that petitioners’ names are to be placed upon a special list if, and only if, their standings upon the comparable examination were such that they would have been certified for promotion in competition with the non-veterans upon the original list, or in competition with veterans previously discharged from the service in time to *385get upon either the original list or some prior special eligible list. It would have been a simple matter for the Legislature, if it had so intended, to provide that a veteran be placed upon a special eligible list if any nonveteran had been certified for promotion after the applicant entered the military service.
This nullifies the contention of appellants that they were prejudiced by delay in conducting their examination. If, as Special Term held, their marks upon the comparable examination were not high enough to entitle their names to be placed upon a special list, it could make no difference to them when the eligible list which they failed to make was promulgated. Their names would not have gone upon the list even if it had issued at an earlier date. The time when this list was prepared had nothing to do with whether petitioners’ marks were as high as those of others who had previously been reached for certification. In fact, the longer the time which elapsed, the greater would be the chance that someone would have been promoted whose standing was as low as the highest of the petitioners. The delay, which tended to help petitioners, appears not to have been occasioned by any purpose to injure them, but was evidently due to awaiting the decision by the Court of Appeals in Matter of Goldberg v. Morton (299 N. Y. 559), which bore upon what persons were entitled to be admitted to the examination.
The argument based upon the constitutional amendment to section 6 of article V of the State Constitution, appears to imply that a construction of subdivision 5 of section 246 of the Military Law in favor of petitioners is necessary in order to save the constitutionality of that statute. That is not, however, the case. This provision of the Military Law, intended to protect promotional rights of servicemen, was adopted before this amendment to the Constitution became effective on January 1,1946. It is an earlier independent provision of law, and deals with a different phase of the subject. The statute was neither dependent upon nor was it designed to execute the constitutional provision. There is no dispute that under this clause in the Constitution, all honorably discharged veterans were entitled to preference over nonveterans in appointment or promotion to civil service positions, nor that disabled veterans were entitled to preference for the same purposes over nondisabled veterans. This constitutional mandate refers, however, to appointments and promotions occurring after the veteran was discharged from the service, and when he would have been able to proceed at once to undertake the actual performance of the *386duties of the position. It has no relation to the filling of positions, or to the establishment of eligible lists while the applicants continued in the military service, and when it could not be known whether they ever would be honorably discharged, or would be wounded. There was no intention that veterans should supersede those who had to be appointed in their absence, nor to give them greater rights than they would have possessed if they had been available when the positions were filled.
The order appealed from should be affirmed, with costs.
Cohn, Callahan and Shientag, JJ., concur with Dore, J.; Van Voorhis, J., dissents and votes to affirm, in opinion.
Order reversed, with $20 costs and disbursements to appellants, and an order is directed to be entered granting petitioners the relief indicated in the opinion herein. Settle order on notice.