(dissenting). The Municipal Civil Service Commission of the City of New York determined that a laborer, who, among his other duties, assists rammers and payers in the construction and repair of city streets, is eligible for promotion to the position of rammer. I believe that determination — which has been upheld by the Appellate Division — eminently correct. I cannot agree with the decision, now being made by the court, that either the Constitution or the Civil Service Law makes impossible the promotion of an employee in the labor class to a position in the competitive class.
The sole test for promotion as prescribed by the Constitution of this state (art. V, § 6) is the practicability of such promotion, and not the classification and grading of the positions involved, for differences in classification or grading do not establish that promotion is not practicable. The legislature has implemented the constitutional provision by providing that “ Vacancies in positions in the competitive class shall be filled, as far as practicable, by promotion from among persons holding positions in a lower grade in the department in which the vacancy exists ” (Civil Service Law, § 16, subd. 1). That provision must be read together with two other subdivisions of the same section: “ For the purposes of this section ”, subdivision 7 specifically recites, “ an increase in the salary or other compensation of any person holding an office or position * * * beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion ”, and subdivision 8 expressly imposes certain limitations upon promotion “ from a position in one class to a position in another class".
The rules of the Municipal Civil Service Commission of the City of New York establish grades for some positions in the competitive class, but not for positions in the labor class. The position of rammer is classified in the competitive class in Part 38, entitled “ The Skilled Craftsman and Operative Service ”, which provides that “ The compensation at the grades of positions in this part is fixed at the prevailing rate of wages for each *149of them as determined by law ” — that is, by the procedure prescribed in section 220 of the Labor Law. It is not disputed that the laborer’s compensation is less than that of rammer.
The first question, therefore, that we must resolve is whether the position of laborer is 11 in a lower grade ’ ’ than that of rammer — and the answer seems clear. The commission has defined “ grade ” as meaning “ the order or standing of a position with reference to the compensation attaching to it ” (N. Y. City Mun. Civ. Serv. Comm. Rules [1947], rule I, subd. 13). By that definition, the position of laborer is — because the pay is less — necessarily in a lower grade than that of rammer.
Where positions involving the same general type of work can be differentiated on the basis of amount of skill, responsibility and compensation, they are deemed to be in different grades for promotion purposes, even in the absence of formal grades established by civil service commissions. Our decision in Matter of Williams v. Morton (297 N. Y. 328) implicitly holds that a graded position for which no maximum salary is prescribed — in effect, an ungraded position as to maximum salary — is, nevertheless, for purposes of promotion, in a lower grade than a newly created supervisory position. That case involved an examining physician, Grade 4, salary range “ $3,000 per annum and over.” Grade 4 was the highest competitive grade of the medical service. An employee in Grade 4, salary $4,000 a year for part-time service, was detailed or assigned to take charge of the medical staff at $7,500 a year. In characterizing such action as illegal, Chief Judge Loughbau, writing for the court, declared that “ the State Constitution (art. V, § 6) * * * clearly requires all promotions as well as all appointments to be made for merit and fitness after determination thereof by competitive examination, unless such an examination would be futile ” (p. 333), and went on to say “ Such an advance in income and in professional responsibility and prestige is certainly a ‘ promotion ’ in every fair sense of that word ” (p. 334).
Nor does anything turn upon the fact that the Williams case involved a promotion from one position in the competitive class to another position in the competitive class. If positions in the competitive class may be in grades relative to each other for promotion purposes — even in the absence of formal *150grading by civil service commissions (see, also, Story v. Craig, 231 N. Y. 33, 38-39) —there is no reason why positions in the labor class may not be similarly regarded for such promotion purposes. Certainly, the commission did not regard its failure to establish formal grades for positions in the labor class as a bar to the promotion of laborers to the position of rammer in the . competitive class, for it has provided for such promotion in its rules, despite the absence of grades for positions in the . labor class.
Indisputably, the legislature, by enacting section 16, subdivision 8, of the Civil Service Law, contemplated promotion “ from a position in one class to a position in another class ”, for that is the very language of the statute itself. However, to ' effect such a promotion, it is specified, two conditions must be met.
The first condition is that such a promotion must be “ specifically authorized by the state or municipal commission ”. That specification was satisfied in the case before us. Here, by virtue of paragraph 11 of section X of rule V of the Rules of the Municipal Civil Service Commission — accorded the force and’effect of law (Civil Service Law, § 6) — the commission was empowered to “ extend eligibility for promotion to positions in the Competitive Class to employees in the Labor Class who have for three years next immediately preceding the examination performed work of a lower but corresponding character in such class.” While that provision does not explicitly sanction the promotion of laborers to rammers, the commission’s action in declaring laborers eligible to compete in the examination for promotion to rammer constitutes the essential authorization for the promotion of any laborer who passes the examination and is subsequently certified for promotion.
The second condition — which must be satisfied before a promotion from a position in one class to a position in another class is sanctioned — is that no person shall “ be promoted or transferred to a position for original entrance to which there is required by this chapter or the rules an examination-involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person, unless he shall have passed the examination and is eligi*151ble for appointment to such higher position.” (Emphasis supplied.)
The words, ££ passed the examination ”, refer to the examination taken by the employee whereby he qualified for his original appointment, as both Chief Judge Pound, while a member of the State Civil Service Commission (N. Y. Assem. Doc. [1902], No. 56, p. 263 et seq.), and Collier, in his work on Civil Service (pp. 99-100), have stated. Judge Pound, for instance, wrote that££ the words £ passed the examination ’ refer to positions in the non-competitive class, ’ ’ (p. 264) clearly envisaging thereby the qualifying noncompetitive examination which is administered to applicants for appointment in the noncompetitive class. (See Matter of Merriweather v. Roberts, 268 N. Y. 12; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435.) There is, of course, no doubt that qualifying noncompetitive examinations may be, and usually are, administered to applicants for appointment in the labor class. (Cf. Burke v. Holtzmann, 110 App. Div. 564, 566; People ex rel. Langdon v. Dalton, 49 App. Div. 71, 74, affd. 163 N. Y. 556; Matter of Angelora v. Kern, 177 Misc. 803, 804, affd. 262 App. Div. 1018.) Thus, in the Angelora case (supra, 177 Misc. 803, affd. 262 App. Div. 1018), applicants for the position of auto truck driver in the labor class were given a qualifying noncompetitive examination which consisted of a medical, physical, practical and literary test. It follows, therefore, that the words,£ 1 passed the examination ”, apply to employees in the labor class as well as to employees in the noncompetitive class. Consequently, an employee in the labor class has ££ passed the examination ” prescribed by the statute and may qualify for promotion in the competitive class, provided that he 1 ‘ is eligible for appointment to such higher position.” Such eligibility is shown by passing an examination for the higher position and by attaining a place upon the eligible list.
The balance of the subdivision —£ £ nor shall a person be promoted or transferred to a position for original entrance to which there is required # * * an examination involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person” — further limits promotions to situations where the *152original examination and the promotion examination both involve similar essential tests and qualifications, although the promotion examination requires higher tests or qualifications. Transfers, however, are limited to situations where the essential tests or qualifications are similar but not higher. Every promotion, by definition, involves essential tests and qualifications higher than those prescribed for original appointment to a lower position with similar duties, whereas a transfer contemplates a change from one position to another involving similar but not higher essential tests, qualifications and duties. This difference between promotion and transfer precludes the application of identical limitations to both, as the legislature recognized by speaking in the disjunctive of a person “ promoted or transferred ’ ’ and of ‘ ‘ essential tests or qualifications different from or higher than those prescribed for original entrance to the position held by such person ’ \ Thus, language confirms what reason requires: a promotion is prohibited only if it involves “ different ” tests or qualifications. Such a construction of the statute permits promotions to positions involving similar but higher essential tests and qualifications, while a contrary construction would render all promotions impossible, since, as we have seen, every promotion, by definition, involves higher essential tests and qualifications than those prescribed for a lower position with similar duties.
The determinative factor, then, is whether the two positions — the one occupied and the one to which promotion is sought — involve essentially similar tests and qualifications, and not whether they are in the same or different classifications. That this is so is borne out and confirmed by the reasoning in Matter of Mendels on v. Finegan (168 Misc. 102, affd. 253 App. Div. 709, affd. 278 N. Y. 568), the very case relied upon by Judge Froessel. The promotion examination in that case was held improper because the original examination for the “ lower ” position of clerk did not test for the qualifications that were in any way similar to those prescribed for the “ higher ” position of law assistant. More specifically, the original examination for clerk required no legal education and did not test for capacity to perform any legal duties whatever, while the examination' for law assistant not only required legal education, but tested for capacity to perform legal duties.
*153The fact that the position of laborer is classified in the labor class and ungraded, while the position of rammer is classified in the competitive class, does not require us to accept as a fact that the examination for these positions involved essential tests and qualifications different from each other. Matter of O’Connell v. Clark (200 App. Div. 606) —which Judge Froessel cites — is not to the contrary, for the court, after observing that differences in classification required an assumption of differences in the essential tests and qualification, went on to point out actual differences in the physical tests, age limitations and duties of the positions there involved. If a difference in classification raises a conclusive presumption of differences in essential tests and qualifications, then, of course, there could never be any promotion from a position in the labor class to a position in the competitive class. And, if that were so, the statutory provision limiting promotion “ from a position in one class to a position in another class ” (Civil Service Law, § 16, subd. 8), would, quite obviously, be not only superfluous but meaningless. It seems to me that comparison of tests and of qualifications for promotion to a position in the competitive class may be made in any case, and that promotion should be allowed Avhenever such comparison shows similarity in essential tests and qualifications, despite differences in classification or grading. (Cf. Kelty v. Kaplan, 205 App. Div. 487.)
Our query, therefore, must always be whether the examination given to the applicant and passed by him in qualifying for his current position tested for the same or similar qualifications that would be demanded of one filling the position to which promotion is sought. Similarity of work and qualifications, not identity of classification, is the standard and criterion.
Upon such a construction of the statute, the question arises Avhether the qualifying noncompetitive examination for a laborer involved essential tests and qualifications similar to — albeit lower than — those prescribed for the position of rammer. The commission determined this question in the affirmative. In the absence of any showing that the essential tests and qualifications for the positions of laborer and rammer are different and wholly unrelated, a court should not assume that they' are different, particularly since the commission implicitly found *154them to be similar under its rule V, section X, paragraph 11 •— which, as noted above, provides for promotions from the labor to the competitive class of employees who had been performing “ work of a lower but corresponding character ”.
In my view, therefore, petitioners’ application to annul the rammer promotion examination and the list resulting therefrom was properly denied by the Appellate Division, and its order should in all respects be affirmed.
Lewis, Conway and Dye, J J., concur with Froessel, J.; Fuld, J., dissents in opinion in which Loughran, Ch. J., and Desmond, J., concur.
Ordered accordingly. [See 303 N. Y. 804.]