O'Neill v. Schechter , 12 A.D.2d 760 ( 1961 )

Appeal from order entered on-October 27, 1959, denying petitioners’ motion for an order directing the respondents to grant credit for the answers of the petitioners to questions 21, 25, 28, 29, 53, 54, 56, 66, 67 and 88 of the examination for promotion from Patrolman to Sergeant, Police Department, City of New York, held on January 5, 1957, and remanding the matter to respondents for reconsideration, unanimously dismissed, with $20 costs and disbursements to the respondents. This order is not a final one as it directs the respondents to take further action that would require the exercise of discretion rather than the performance of a merely ministerial duty (Matter of American Holding Corp. v. Murdock, 6 A D 2d 596). An appeal from a nonfinal order in an article 78 proceeding may only be taken where leave to do so has been granted (Civ. Prac. Act, § 1304; Matter of American Holding Corp. v. Murdoch, supra). No leave to appeal having been obtained and the respondents having taken proper objection, a review by this court is precluded (Civ. Prac. Act, § 1304; Matter of Hirsch v. State Rent Comm., 10 A D 2d 35). Concur — Breitel, J. P., Rabin, Valente, McNally and Eager, JJ.