In the Matter of the Application of George Glenn, Frank De Carolis, Joseph Salamone, Louis Frintzilas, George Bolt, Eugene Russell, Richard Lyons, Alfred Bullett, Andrew Titus, Fred Dester, Marco Stanco, James Fling, Donato Grella, Austin Taylor, John Silewchuk, Michael Grecco and Thomas Donohue, Appellants, against The City of Glen Cove, Hobace K. T. Sherwood, Harry Bemis, George E. Hawkins, Warren Murdock and Bogart L. Seaman, as Mayor, Commissioner of Public Works, Commissioner of Finance, Commissioner of Public Safety and Commissioner of Accounts, Respectively, of the City of Glen Cove, and Morris Canarick, Frank Dailey and Allyn C. Donaldson, as Members of the Municipal Civil Service Commission of the City of Glen Cove, Respondents

In the Matter of the Application of George Glenn, Frank De Carolis, Joseph Salamone, Louis Frintzilas, George Bolt, Eugene Russell, Richard Lyons, Alfred Bullett, Andrew Titus, Fred Dester, Marco Stanco, James Fling, Donato Grella, Austin Taylor, John Silewchuk, Michael Grecco and Thomas Donohue, Appellants, against The City of Glen Cove, Hobace K. T. Sherwood, Harry Bemis, George E. Hawkins, Warren Murdock and Bogart L. Seaman, as Mayor, Commissioner of Public Works, Commissioner of Finance, Commissioner of Public Safety and Commissioner of Accounts, Respectively, of the City of Glen Cove, and Morris Canarick, Frank Dailey and Allyn C. Donaldson, as Members of the Municipal Civil Service Commission of the City of Glen Cove, Respondents. [MAJORITY] 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. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.