In this article 78 proceeding, the petitioner seeks an order (1) prohibiting the corporation counsel from employing certain attorneys in the positions to which they have been classified unless the petitioner is designated to one of them; (2) directing the Civil Service Commission to hold a competitive examination, or in the alternative to certify the petitioner to the post of Principal Attorney (the highest grade as now established); (3) restraining the certification of the payrolls of three groups of attorneys unless the petitioner is included in the highest category.
Special Term made an order: (1) revoking and annulling the appointment of three groups of attorneys (previously certified and appointed) unless a competitive examination is held; (2) enjoining the assignments of the titles in dispute and the certification of payrolls; (3) directing a trial to determine whether the duties of the groups in question were higher than those attaching to a former classification.
The majority has modified the order by striking the injunctive provisions and has ordered a limited inquiry. I must dissent.
In 1948, the Citizens Budget Commission, in a report to the then Mayor of the City of New York, called attention to the inadequacy of existing civil service classifications, the lack of uniform salary grades, and many other defects in the classified service caused by the lack of co-ordinated planning. As a result, the Committee on Management Survey was created and supplied with funds to make a study of the entire civil service structure. A firm of professional public administration consultants was engaged and the committee, through many subcommittees, undertook an analysis of personnel practices in 59 departments and agencies and 11 cultural institutions in the city. After four years of study, a comprehensive plan was evolved and a general career and salary plan proposed. In 1954, the State Legislature, at the request of Mayor Wagner, enacted *290laws empowering the city personnel director to make studies and recommendations to the Civil Service Commission for the purpose of establishing the program. From the foregoing it is evident that reclassification was not a scheme designed to favor a single employee, as was the situation in Williams v. Morton (297 N.Y. 328) upon which Special Term so heavily relied.
Without further detailing, it is sufficient to state that 125,000 city employees were included in the career and salary plan. Before grades, titles and salary levels were established, there were desk audits, on-the-job surveys, and consultations with department heads, the representatives of 130 employee organizations and an equal number of professional and civic bodies.
The employees of the law department of the city were reclassified as were those in other municipal offices. The petitioner, a member of the Bar employed in the law department, held a position as tax counsel, grade-4.
The majority opinion recites some of the salient facts, sufficient to obviate repetition here. It is necessary, however, to reiterate that the grade-4 status of lawyers was the highest in the prior classification and provided a minimum salary level but no maximum.
In adopting the career and salary plan, the Board of Estimate provided for a Board of Appeals to hear all protests and appeals on salary allocations. Thereafter, the Municipal Civil Service Commission specifically created an Appeals Board empowered to hear protests and appeals on the classification and reclassification of positions.
It is, therefore, manifest that in the very creation of the career and salary plan by the bodies and officials duly authorized to act, an administrative procedure was provided and adopted for the benefit and protection of any aggrieved person.
Although neither the petitioner nor the respondent has stressed the issue, the amicus brief filed by the Association of Reclassified Employees in the Civil Service of the City of New York does pose the question. I believe that the objection made to this proceeding upon the ground that the petitioner has failed to exhaust his administrative remedies is a valid one. It was for the purpose of determining inequities both in reclassification and in salary allocations that the appeal boards were created. The petitioner has seen fit to ignore his right to protest or appeal to the boards, has attempted to by-pass them and has initiated this article 78 proceeding without exhausting the remedy provided.
His failure to exhaust the administrative remedy bars this proceeding. (Suppus v. Bradley, 278 App. Div. 337, 339; Metro*291politan Club v. Consolidated Edison Co., 276 App. Div. 1061; People ex rel. Uvalde Asphalt Paving Co. v. Seaman, 217 N. Y. 70 ; Yakus v. United States, 321 U. S. 414; Hutchins v. McGoldrick, 200 Misc. 964; Ingber Realty Corp. v. Weintraub, 5 Misc 2d 942; Penfield v. Murray Hill Holding Corp., 281 App. Div. 675, affd. 306 N. Y. 602.)
Upon the adoption of the new classification and the assignment of new titles, pursuant to enabling State and city legislation, and civil service regulations, it must be presumed that the old positions were simultaneously abolished. The only right, therefore, the petitioner had under the Civil Service Law (§ 22) was to be transferred to a corresponding position which he was qualified to fill, at the same compensation. (Cf. Matter of McNamara v. Holling, 282 N. Y. 109; Matter of O’Donnell v. Sinnott, 266 App. Div. 176, 177.) The petitioner does not seek a restoration of his old position. Nor does he seek a transfer to a corresponding one, for that he received. Indeed, in the new classification, his salary was increased. In essence, he seeks to be placed in a grade higher than he formerly occupied.
In the old grade-4 legal positions, which had no salary ceiling, a number of employees had been designated to supervisory capacities at salaries substantially in excess of the mlmrrvnm of $4,800 for the grade. In the reclassification, the grade-4 positions were subdivided into four groups and salaries fixed for each as follows:
Attorney.....................$ 7,100 to $ 8,900
Senior Attorney ............. 9,000 to 11,000
Supervising Attorney......... 10,300 to 12,700
Principal Attorney........... 11,200 to 13,600
These were established pursuant to chapter 354 of the Laws of 1954, and the resolution of the Board of Estimate herein-before referred to.
In July, 1956, following a survey by the Civil Service Commission which included individual desk audits, on-the-job surveys, examination of duties pertaining to the former titles, and office studies, the 139 grade-4 legal positions in the corporation counsel’s office were reclassified into the four categories just enumerated, as follows: Attorney, 91; Senior Attorney, 25; Supervising Attorney, 13; Principal Attorney, 10. A similar over-all reclassification in the city of Buffalo was upheld (Matter of Sippell v. Dowd, 191 Misc. 558, affd. 274 App. Div. 1027). The city has a right to decide that services performed under one title would more appropriately fall under another (Matter of Carr v. Kern, 279 N. Y. 42, 47).
*292The petitioner was assigned to one of the 91 posts classified as attorney. He urges that he was entitled to a higher designation. In my view, he has utterly failed to demonstrate,- either by his petition or by any supporting papers, a clear legal right to the relief sought. The fact that others in the same grade as the petitioner were assigned to more responsible duties, after the procedures hereinbefore outlined were followed, does not give to the petitioner the right to another position. (See Matter of Sanger v. Greene, 269 N. Y. 33; Matter of Cook v. Kern, 278 N. Y. 195, 199.) Moreover, if a vacancy occurs in any of the higher subdivisions, he is eligible for appointment without examination; so that, if otherwise qualified, a salary increase will automatically follow. His tenure, therefore, has not been affected (Matter of Sugden v. Partridge, 174 N. Y. 87), nor has he been classified out of office (Matter of Sandford v. Finegan, 276 N. Y. 70; Matter of Fornara v. Schroeder, 261 N. Y. 363, 368).
For the reasons herein set forth, I must dissent and vote to reverse the order and dismiss the petition.
Rabin, Valente and McNally, JJ., concur with Breitel, J. P.; Frank, J., dissents and votes to reverse the order and dismiss the petition in opinion.
Order modified by striking therefrom the injunctive provisions and otherwise affirmed, the matter to be remitted for a hearing as to all of “ Attorney — Grade 4 ”, but in accordance with the views expressed in the opinion herein.
Settle order On notice.