Opinion
February 3, 1941.
Present — Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ.
In a proceeding under article 78 of the Civil Practice Act to compel the reinstatement of appellants to positions in the labor class of the civil service of the city of Glen Cove, resettled order dismissing the petition for failure to state facts sufficient to entitle the petitioners to relief unanimously affirmed, without costs. Ordinarily, the allegation that appellants "stand highest on the eligible list" would be regarded as an allegation of fact. But here such allegation should be read in connection with the demand in the prayer for relief that the municipal civil service commission be directed to prepare and maintain an eligible labor list. It then becomes apparent that the allegation that appellants stand highest on the list is a mere conclusion of the pleader. There is no assertion in the petition that a list exists, and it is evident from the prayer for relief that there is no list. The court could not determine the position of the petitioners on a list which has no existence. ( Matter of Walsh v. Patterson, 257 App. Div. 917.) The petition is, therefore, insufficient to entitle the petitioners to relief. Appeal from order denying reargument dismissed as not appealable.