I agree with the analysis of my codissenter and conclude that the respondent City of Cohoes did not violate public policy by agreeing to abide by its past practice of making provisional appointments from an eligible list which contained less than three names. In Matter of Sprinzen (Nomberg) (46 NY2d 623), the Court of Appeals clearly cautioned courts to refrain from disturbing the arbitration process, under the guise of public policy, unless "public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator” (supra, p 631). In this case, there is no prohibition, statutory or *401otherwise, against the City of Cohoes selecting one of the two individuals on the eligible list for the position of police captain on a provisional basis. The applicable statute (Civil Service Law,§ 65, subd 1) allows a municipality wide discretion in making provisional appointments and I fail to see how the city’s voluntary decision to limit that discretion and choose from among those who have scored well on a competitive examination, certainly a relevant criterion upon which to base an appointment, is violative of public policy. Therefore, that portion of the award which found the city in violation of the past practice clause in the collective bargaining agreement when it hired George Donahue should be confirmed.
The same rationale applies to that portion of the arbitrator’s award which directed the city to appoint provisionally one of the two persons whose names appeared on the eligible list and award that person back pay. Nothing prohibits either of these people from being appointed and, while a directive to appoint presently may limit the city’s usual discretion in deciding whether to even fill a position, the city still has the absolute right to fire a provisional employee at any time (see Matter of City of Binghamton [Binghamton Civ. Serv. Forum], 63 AD2d 790). This portion of the award should also be confirmed.
While it may be true that persons whose names appear on an eligible list have no vested rights in a position until such time, if ever, as they are appointed (Hurley v Board of Educ. of City of N. Y., 270 NY 275, 279; Matter of Blake v O’Connor, 75 Misc 2d 135; see Matter of Cassidy v Municipal Civ. Serv. Comm, of City of New Rochelle, 37 NY2d 526) and thus are not entitled to back pay, an arbitrator’s award will not be vacated for errors of law (Matter of Sprinzen [Nomberg], 46 NY2d 623, 629, supra).
There is, however, one portion of the award which should not be confirmed since it does violate public policy. The arbitrator directed the city to appoint one of the two persons on the eligible list to the position of police captain "on either a permanent or a provisional basis”. Unlike the directive to provisionally appoint, the alternative mandate to make a permanent appointment would violate a specific statutory prohibition against such appointments in the absence of an eligible list containing three names (Civil Service Law, §61, subd 1). It would thus be contrary to public policy for the City of Cohoes to comply with the arbitrator’s award by attempting *402to appoint permanently one of the two persons whose names appeared on the eligible list. Since this change in the arbitrator’s award cannot be effected by judicial modification (CPLR 7511, subd [c]), the award must be vacated and the matter remanded to the arbitrator.
Accordingly, I would reverse the judgment of Special Term, reinstate the petition, vacate the arbitrator’s award, and remit the matter to the arbitrator for further proceedings not inconsistent with the foregoing analysis.
Sweeney and Staley, Jr., JJ., concur with Casey, J.; Mahoney, P. J., and Herlihy, J., dissent and vote to reverse in separate opinions.
Judgment modified, on the law, by adding thereto a provision vacating the award, and, as so modified, affirmed, with costs to respondent.