The issues herein have a background that should first be stated. For many years the United States Veterans Administration has determined Federal civil service preferences of veterans in accordance with degrees of disability fixed on percentage bases ranging from 0% to 100%. Such 0% rating does not mean an absence of disability. It means (1) the veteran was disabled during the period of his or her service in the armed forces and (2) the disability persists but is slight in degree and does not appreciably impair earning capacity.
At the times here in question, section 6 of article V of the State Constitution declared an absolute preference in civil service appointments and promotions for veterans who during the period of their service in the armed forces in time of war had become disabled to an extent certified by the United States Veterans Administration and whose disability was also certified by that administration to have been in existence at the time of his or her application for appointment or promotion. Upon applications made for such certifications, the Veterans Administration followed its practice of specifying degrees of disability upon percentage bases and the State civil service authorities accorded preferences to all applicants so classified, including those whose disability was rated at 0%. That procedure of the State civil service authorities continued until this court held that a rating of 0% disability or of a disability of less than 10% was no warrant for allowance of disabled veterans’ preferences under section 6 of article V of the State Constitution (Matter of Carey v. Morton, 297 N. Y. 361). So much for the background of this controversy.
The present proceeding was brought under article 78 of the Civil Practice Act against the State Tax Commission and the *261State Civil Service Commission. The petitioners are veterans of World War II with disabilities rated by the Veterans Administration at 10% or more. In February, 1942, they passed a competitive civil service examination for the position of motor vehicle license examiner and were made eligible for appointment to that position by a preferred list promulgated in February, 1944. A like preference was by that list bestowed upon other veterans whose disabilities had been rated at 0% and they were thereafter appointed from that same list. But none of these petitioners had been appointed when that list expired in 1948. In this proceeding, they demanded removal of the 0% incumbents and their own appointment. Their petition was dismissed at Special Term. The Appellate Division affirmed. By our leave, the petitioners brought the case here.
The only pleadings in this record are the petition and a notice of objection thereto in point of law (see Civ. Prac. Act, § 1293). In that notice the respondents — the State Tax Commission and the State Civil Service Commission — asked the court at Special Term “ for an order dismissing the petition herein as a matter of law for the reason that the same is untimely, and for the further reason that the petition fails to state facts which entitle petitioners, or any of them, to the relief requested or to any other relief.”
Argument against the petition on the score of untimeliness is of no avail. For the petition charges a continuing failure of the respondents to obey the command of section 6 of article V of the State Constitution as construed by this court in Matter of Carey v. Morton (supra). (See Civ. Prac. Act, § 1286.)
On the other hand, the respondents are right when they say that appointment of any of the petitioners after the expiration of the eligible list was a legal impossibility, and they are right, too, when they say that they could not estop themselves from asserting the fact of such expiration (see Matter of Carow v. Board of Educ. of City of N. Y., 272 N. Y. 341; Matter of Neubeck v. Bard, 275 N. Y. 43). Even so, the erroneous appointments— though made in good faith — ought to be open to attack by the petitioners, because as citizens and taxpayers they are entitled to an opportunity to insist upon the construction which this court placed upon the civil service article of the State Constitution in Matter of Carey v. Morton (297 N. Y. 361, *262supra). (See Matter of Andresen v. Rice, 277 N. Y. 271, 281. Cf. Slavin v. McGuire, 205 N. Y. 84, 86; Matter of McCabe v. Voorhis, 243 N. Y. 401, 411.) Matter of Phillips v. Kaplan (242 App. Div. 815, affd. 266 N. Y. 514) is not authority to the contrary, since the point we are now considering was there neither raised nor passed upon.
The petitioners may here obtain an order directing removal of 0% veterans from their positions unless an acceptable reason for a contrary course is made to appear by answer or on a trial. For example, an extensive removal of 0% veterans might so disrupt and disorganize the staff of the State Tax Commission as to constrain the court in its discretion to deny the relief here sought (Matter of Andresen v. Rice, supra, p. 282). Issues of that kind, however, cannot be determined summarily.
In our judgment the dismissal of this petition was error.
The orders should be reversed, without costs, and the matter rémitted to Special Term for further proceedings not inconsistent with this opinion.