In this article 78 proceeding, petitioner seeks a reclassification of his position after court reorganization to that of a Law Assistant II. His petition therefor was previously dismissed by this court (Matter of Gavigan v. McCoy, 36 A D 2d 563), but remanded on further appeal (Matter of Gawigan v. McCoy, 30 N Y 2d 787) for a hearing to resolve his allegations that his prior position of Special Assistant Deputy Clerk was in an unlimited salary range category and without limitation of1 duties except as imposed by the Chief County Judge. Special Term subsequently determined both issues in petitioner’s favor and the State Administrator now appeals to this court. We reverse and dismiss the petition.
We concur with the finding of Special Term that the position of Special Assistant Deputy Clerk was, at least at the times relevant to this appeal, in an unlimited salary range category (see Matter of Mandle v. Brown, 5 N Y 2d 51, 62). However, it seems clear to us that, contrary to the conclusions of Special Term, petitioner performed out-of-title work when he engaged in what amounted to law assistant work in that position. Every job description or státement of duties relating to that position which was adduced at the hearing obviously emphasized the purely clerical nature of duties for that title and none so much as hinted at any law assistant responsibilities. Indeed, it appears that at the time of his appointment to the position of Special Assistant Deputy Clerk, there already existed the position of Law Assistant with a description of duties matching those then being performed by petitioner. Special Term’s reliance on an estoppel theory arising from petitioner’s appointment to that title from his prior position of Court Attendant as somehow ratifying his previously out-of-title duties is patently erroneous. Obviously there were other Special Assistant Deputy Clerks whose tasks in no way partook of the efforts undertaken by this petitioner. Moreover, it seems more likely that his appointment was the result of a recognition of his financial worth and qualifications than any attempt to bring into title the work he was then performing. Whether imposed or assumed, the simple fact remains that duties performed by this petitioner were without the proper title and scope of a Special Assistant Deputy Clerk. Although we are not without sympathy for his apparent plight, the legal conclusion to be drawn from these facts mandates a dismissal of the petition since his out-of-title work cannot support a claim for the desired reclassification (cf. Matter of Ainsberg v. McCoy, 26 N Y 2d 56; Matter of Niebling v. Wagner, 12 N Y 2d 314).
*358The judgment should be reversed, on the law and the facts, and the petition dismissed, without costs.