In a proceeding pursuant to CPLR article 78, inter alia, to compel the New York State Civil Service Commission to classify the position of Criminal Investigator in the Orange County District Attorney’s office as "noncompetitive” or "exempt”, the appeal is from a judgment of the Supreme Court, Orange County, entered December 24, 1975, which, inter alia, granted the petition. Judgment reversed, on the law, without costs or disbursements, and proceeding dismissed on the merits. The Orange County Legislature created the position of Criminal Investigator in the District Attorney’s office. The New York State Civil Service Commission classified the position as competitive. Petitioner was provisionally appointed to said position on March 18, 1974. An open examination for the position was held on November 9, 1974 and a list was formulated. Petitioner passed the examination but, because of his low score, was not eligible for immediate appointment. The District Attorney refused to make appointments from the list and requested that the County Department of Personnel reclassify the position as exempt. This request was denied by the County Department of Personnel and by the State Department of Civil Service. Thereafter, petitioner commenced the instant proceeding. Under the facts herein, Special Term improperly directed the State Civil Service Commission to reclassify the position (see Matter of Dillon v Nassau County Civ. Serv. Comm., 56 AD2d 930). Martuscello, Acting P. J., Cohalan, Rabin and Mollen, JJ., concur.