Gentile v. Niesley 19 A.D.2d 723

In a proceeding under article 78 of the Civil Practice Act: (a) to annul a determination of the Civil Service Commission of the County of Nassau denying the petitioner’s application to raise the grade which he had received in a competitive examination for the position of “ Principal Construction Inspector ” in the Planning Commission of said county; and (:b) to direct the Planning Commission to appoint him to such position, both Commissions appeal from an order of the Supreme Court, Nassau County, entered July 5, 1962, which -granted the petitioner’s application to the extent of “returning the matter” to them “for reconsideration and regrading in accordance with the opinion” rendered by the Special Term. Order reversed on the law and on the facts, without costs; -application denied; and proceeding dismissed without costs. Findings of fact contained or implicit in the decision and opinion at Special Term which may be inconsistent herewith are reversed, and new findings are made as indicated herein. Petitioner alleged merely that he gave the correct answers to certain essay questions propounded to him, and he attacked the grade which he received. 'The record discloses an honest difference of opinion between him and the Civil Service Commission. When such a difference exists, the courts may not properly intrude and attempt to resolve the difference (see Matter of Connaughton v. Taylor, 285 App. Div. 1169, affd. 1 N Y 2d 864; Matter of Simone v. Conway, 284 App. Div. 95, affd. 308 N. Y. 692). We do not pass upon the question whether sufficiently objective grading procedures have been established (see Matter of Quinn v. Streeter, 175 Mise. 932; of. Matter of Fink v. Fimegan, 270 N. Y. 356; Matter of Weissbard v. Kaplan, 25 Mise 2d 560). Beldock, P, J., Ughetta, Hill, Rabin and Hopkins, JJ., concur. [35 Misc 2d 1005.]