As authority for the method of rating employed on this promotion examination for the position of assistant housing manager in the New York City Housing Authority, respondents rely initially on rule V (§ V, subd. 1) of the Rules of the Civil Service Commission of the City of New York. Subdivision 1 contains the so-called conversion formula which in certain specified instances allows the commission to employ “ a mathematical formula of penalties for incorrect answers * * * in the rating of written tests ”. In other words the rule would permit the commission to change *297the passing grade after the examination. However, petitioners contend, among other things, that inasmuch as the rule was not in effect at the time of the examination, it may not be applied in this case. In answer to that contention it is urged that the validity and applicability of subdivision 1 has been established by the recent decision in Matter of Robbins v. Schechter (3 A D 2d 1010, affd. 4 N Y 2d 934) and that consequently the Special Term was correct in dismissing the petition herein. In our opinion the Robbins decision is not applicable here for the reason that in that case the rule containing the conversion formula was in existence prior to the date on which the examination was held, whereas here the rule did not become effective until sometime after the examination had been taken. Thus, in the Robbins case, candidates at the time they took the examination knew or at least were chargeable with notice that a rule existed which would permit a change in the method of rating after the examination. That is not the case here. The examination was conducted on April 7, 1956 but rule V (§ V, subd. 1) did not become effective until April 24, 1956. It is clear therefore that applicants who took the examination on April 7 had no notice, either actual or constructive, that the passing grade which had originally been set by the commission might subsequently be changed.
Respondents also rely on rule V (§ V, subd. 4) of the rules which provides for the fixing of the passing rate “ prior to the disclosure of the identities of the candidates therein.” The commission interprets this subdivision as meaning that it may not only fix the rating but may thereafter, if it sees fit, change that rating. No support for such a construction can be found in the wording of subdivision 4. When the commission fixed the rating prior to the examination it complied with its obligation under subdivision 4. Therefore, unless the conversion formula be held applicable to this examination, there was no authority for the commission’s change of the rating.
Since the rule containing the conversion formula did not become law until after the examination had taken place, it is our view that the commission exceeded its powers in applying the formula to this examination. Consequently, the petition should be sustained and the relief prayed for, granted.
Breitel, J. P., M. M. Frank and Bergan, JJ., concur in Per Curiam opinion; Rabin, J., dissents in opinion in which McNally, J., concurs.
Order affirmed on the law, without costs.