I dissent, on the law, and vote to affirm.
The salient facts are not in dispute. Petitioner, now employed as a iCourt Clerk II in Supreme Court, Bronx County, was appointed originally as a Court Attendant in Bronx County Court on September 1, 1956. Admitted to the Bar in June of 1957, he has been performing law assistant work since the latter part of 1957 or early 1958. In late 1959 he requested the Administrative Judge of the Bronx County Court to do what he could to secure more adequate compensation and recognition for the specific duties he was performing, as he had been doing law work for the court for some time and was no longer actually working as a Court Attendant. Several months later, after a desk survey by the New York State Civil Service Commission as to the nature of the work being performed by petitioner, he was reclassified and appointed as Assistant Special Deputy Clerk. Significantly, the civil service job classification questionnaire of petitioner dated January 1, 1960 listed among his duties “perform legal research” and the department head commented: ‘ ‘ This employee has been doing this work for the past two years and in my opinion should be given a title more synonymous with work performed.” An inter-office memorandum from the Personnel Technician of the State Department of Civil Service dated April 5, 1960 stated in part: “ In addition, he does research, writes tentative decisions and does all the other related duties generally associated with a Law Assistant ” and “I would believe it most practicable to reclassify his position to Assistant Special Deputy in order that he may wear his three hats more comfortably and that the Court have more flexibility in duty assignments.”
After the 1962 court reorganization (N. Y. Const., art. VI, §35), the Bronx County Court was merged into the Supreme Court and petitioner continued his service in Supreme Court, holding the same title until July 1, 1966. On or about that date he was notified that, pursuant to a classification plan adopted by the Administrative Board of the Judicial Conference, his new title was to be Court Clerk I and also that, according to a position evaluation conducted by said board, that the duties which he performed were those of Law Assistant II.
While the performance of duties out-of-title is not to be used as a basis for reclassification (Matter of Ainsberg v. McCoy, 26 N Y 2d 56, 59), a reclassification which conforms the civil *359service structure to the realities which obtained in the agency prior to reclassification is valid (Matter of Handle v. Brown, 5 N Y 2d 51,64). In Ainsberg, out-of-title duties were described : “ that is duties not properly subsumed under the title and description of the old position ” (p. 59). This is not the situation here, since the reclassification from Court Attendant to Assistant Special Deputy Clerk was accomplished by going through the appropriate administrative channels, not .by inappropriate manipulations on the part of petitioner or his supervisors (see Matter of Niebling v. Wagner, 12 N Y 2d 314, 320), and since it was done clearly and properly so as to be inclusive of his work in the field of legal research, writing decisions and other duties related to those of a Law Assistant. Further, it had the approval of the New York State Civil Service Department, whose intent is shown in documentary evidence. Having performed Law Assistant’s work for so many years with civil service approval, petitioner’s classification in a group other than as Law Assistant II obviously did not conform to preexistent reality.
Staley, Jb., J. P., Sweeney and Main, JJ., concur with Kane, J.; Cooke, J., dissents and votes to affirm in an opinion.
Judgment reversed, on the law and the facts, and petition dismissed, without costs.