(dissenting). The petitioner, at the time of his injury was a fireman, New York City Fire Department, receiving full pay as such. He was on his annual two-week summer-camp stint, as a reservist. Regrettably, he was injured, but he was continued in a reservist pay status while hospitalized, and subsequently was awarded a disability compensation by the Veterans Administration, for life presumably, all the while receiving full pay from the Fire Department. He has not been inequitably treated. But, since the accident occurred while he was in a ‘ ‘ reservist ’ ’ status, it did not happen ‘ ‘ in time of war, ’ ’ and as such it is unacceptable within the statutes as interpreted by Mitchell v. Cohen (333 U. S. 411) and Matter of Rubin v. Conway (273 App. Div. 559, affd. 298 N. Y. 711).
*11These cases, after a review of the history, purpose and intent of veteran preferences," lay down the principle that the equitable and moral basis for such preferences was the recognition accorded the “ whole time and effort ” sacrifice made by veterans in behalf of their fellow countrymen. The purpose was to help the veteran recapture lost opportunities, to make more equal the race of life, to bring the veteran abreast of those who did not make his sacrifice. But the sacrifice must be complete. It may not be “temporary” or “intermittent.” It is justified only ‘ ‘ by the sacrifice and disruption of normal civil life which accompanied full time military service.” (See Rubin, 273 App. Div. 559, 561.) And as noted in the affirmance by the Court of Appeals (298 N. Y. 711, 712) “ The Appellate Division concluded that there was no justification for granting a preference to those such as petitioner who during the war gave only temporary, intermittent service on a basis which left their civilian pursuits practically unaltered.”
The “ whole time and effort ” sacrifice is not present in this case. For aught that appears on the record, the petitioner, as a domestic reservist, save for the minimal training periods, could have slept in his own bed every night, he was not severed from the family bosom or wrenched from familiar surroundings and the things he held most dear; he never missed a pay day nor an opportunity to go forward, and basically the even tenor of his civilian ways was not affected. The service he rendered may have been “ magnificent, but it is not war.” Nor may it be sensibly regarded as ‘ ‘ war-time service ’ ’ in the light of the construction given the statutes by the courts at the summit. To reward this petitioner with a veteran’s preference does a disservice to and dilutes the value of the preference legislatively accorded the military on active duty, enlisted or drafted, whose civilian lives have been uprooted and dislocated and millions of whom are presently overseas in various parts of the world.
All we are called upon to do is to decide whether or not the record sustains Special Term in .the judgment appealed from that the act of the Civil Service Commission was “ arbitrary, unreasonable and unlawful ’ ’ in denying the petitioner a veteran or a disabled veteran preference on the ground he had “No active wartime service.” Recognizing that great deference should be accorded 1 ‘ the interpretation given the statute by the officers or agency charged with its administration ” (Udall v. Tallman, 380 U. S. 1, 16), and that all that is required of them is the display of a “rational basis” (Matter of Colton v. Berman, 21 N Y 2d 322, 334), in my view, the determination of the commission should not be judicially disturbed.
*12I go further. The statutes (N. Y. Const., art. V, § 6; Civil Service Law, § 85) having already been authoritatively construed by the highest courts, and since any preference at all is repugnant to the theory of civil service, the Commissioners might very well have been recreant to their duties if they had not honored the precedents and determined as they did herein. (Mitchell v. Cohen 333 U. S. 411, supra; Matter of Rubin v. Conway, 273 App Div. 559, affd. 298 N. Y. 711, supra.) In any event, the commission action was not1 ‘ arbitrary, unreasonable or unlawful,” as the judgment declares, and there the matter should end.
Special Term rests on two cases: Matter of Potts v. Kaplan (264 N. Y. 110) and Matter of Falconieri v. City Civ. Serv. Comm. (27 A D 2d 513). But in the Potts case, there never was any doubt the service rendered was war time service by bona fide “ Veterans of the World War.” The only question was the extent of the asserted disability. And in the Falcomeri case, similarly, the question did not involve the petitioner’s “ active service ” status, but only the time period of his disability. Actually, it was undisputed that Falconieri served for over 30 months in the United States Navy. And therein, the court in dismissing the petition, said, “ while he has a service-connected disability, the Veterans Administration has failed to certify that his disability was incurred in service during time of war ” (citing Potts, supra, and Matter of Carey v. Morton, 297 N. Y. 361). Thus, the certification possessed by the petitioner herein is not determinative, as Special Term concluded without warrant. It stands for only one thing: he was injured while performing his summer training duty as a reservist, and for it he is receiving a disability compensation from the Veterans Administration. And that, by the cases, is insufficient to qualify him for a preference in Civil Service.
Similarly, the cases cited by the majority (Matter of Lore v. Forbes, 173 Misc. 1066, affd. 259 App. Div. 1; Matter of Donohue v. Huie, 259 App. Div. 645, affd. 285 N. Y. 557), both involve situations where again, unquestionably, the petitioners had been called up for active duty. Not so here. Our petitioner was still a Stateside reservist. True, he may have been exposed to a call for the “ hostilities ” (Civil Service Law, § 85, subd. 1, par. [c], cl. [4]), but for him the call never came.
As for the majority’s references to the United States Code in the first place, section 270 (subd. [a], par. [1]) of title 10 refers to the period wherein the petitioner’s injury occurred as ‘ ‘ on active duty for training of not less than 14 days ’ ’ (emphasis *13supplied). This, to differentiate such a period from active duty during time of war. More important, however, we are not dealing with a Federal statute or with Federal benefits. We are dealing with and are governed by New York statutes. The nettle of this distinction was clearly grasped by Mr. Justice Pittoni in the recent case of Brooks v. Dennison (61 Misc 2d 234, 235) when he said: “ The first question is whether petitioner Van Pelt is entitled to ‘ veteran ’ status as defined in section 85 of the Civil Service Law. He is not. Section 85 defines a veteran as ‘ a member of the armed forces of the United States who served therein in time of war ’ (emphasis added). Subdivision 10 (now renumbered 9) of section 1 of the Military Law says ‘ The term * # * “in the armed forces of the United States ” shall mean full time duty in the army, navy (including marine corps), air force or coast guard of the United States.’ Therefore, petitioner Van Pelt was not in the armed forces even though he served in the Merchant Marine in time of war. * *= * Only the definition of ‘ veteran ’ in section 85 of the Civil Service Law, as complemented by subdivision 10 (now renumbered 9) of section 1 of the Military Law, controls.”
Lastly, all of the foregoing is completely consistent with the opinion of the Attorney-General of the State of New York rendered in 1946 (1946 Ops. Atty. Gen. 156, 160, 163): “ One who joins a reserve component of the armed forces is not thereby placed on full time active military duty. He is in an inactive status, free to follow his normal civilian pursuits but subject to the obligation of responding to orders to active duty as authorized by law (see Matter of Williams v. Walsh, 289 N. Y. 1). * * * The reserve forces of the United States Army, Navy and Marine Corps are without question parts of the armed forces since these are permanent components of the three main branches of the military establishment and are designed to secure a reserve of qualified personnel which may be called upon in time of need. Membership alone, however, does not constitute service, and in order to be eligible for preference such reservists must have performed active duty during the war.” (Emphasis supplied.)
In disallowing the preference, the Civil Service Commission was correct. Special Term should be reversed, and the petition dismissed.
Markewigh and Tilzer, JJ., concur with McNally, J.; McGiverh", J. P., dissents in opinion.
Judgment affirmed, without costs and without disbursements.