Plaintiffs then commenced these proceedings which are amply elucidated in the dissenting opinion. As noted by my dissenting brothers, Special Term correctly found, and I agree, that Housing Authority Police Officers are public officers within the meaning of the statute (Matter of Maye v Lindsay, 69 Misc.2d 276, revd 41 A.D.2d 127, reinstated on opn of Special Term 33 N.Y.2d 552). However, as to these plaintiffs, the residency requirement should not be enforced.

In support of their claim of respondents' bad-faith motive, petitioners are relegated almost exclusively to reliance upon decisions that can be read as condemning an absolute City residency requirement as inconsistent with Public Officers Law § 3 (9) and § 30 (5), which permit firefighters and certain other New York City employees to reside in nearby counties notwithstanding the existence of other applicable statutory or regulatory local residency requirements ( see, Matter of Maye v Lindsay, 33 N.Y.2d 552, revg on opn at Special Term 41 A.D.2d 127, which revd 69 Misc.2d 276, and cert denied 414 U.S. 1069; Uniformed Firefighters Assn. v City of New York, 50 N.Y.2d 85 [City may not enact local residency requirements inconsistent with Public officers Law §§ 3, 30]). Whether the five-point residency credit violates these statutory provisions is an open question, and currently the subject of the McGuinn (supra) suit by non-New York City residents who sat for Examination No. 0084.

This mandate in favor of appointment and promotion according to merit and fitness does not, however, preclude the adoption of age requirements. (Matter of Deodati v Kern, 280 N.Y. 366; Matter of Thomas v Kern, 280 N.Y. 236, 244.) Nothing in Matter of Maye v Lindsay ( 69 Misc.2d 276, revd 41 A.D.2d 127, revd 33 N.Y.2d 552, cert den 414 U.S. 1069) holds to the contrary. Nor does the adoption of age requirements necessarily offend the equal protection clause.

The two dissenters determined that the plaintiffs were subject to sections 3 and 30 of the Public Officers Law but found no basis for a finding of equitable estoppel ( Brennan, supra, pp 418-419). The plurality and dissenting opinions based their finding that sections 3 and 30 of the Public Officers Law are applicable to housing authority police officers on Matter of Maye v Lindsay ( 69 Misc.2d 276 [Sup Ct, Special Term, N Y Co, 1972], revd 41 A.D.2d 127 [1st Dept, 1973], revd "on opinion at Special Term" 33 N.Y.2d 552, cert den 414 U.S. 1069). Maye was an Article 78 proceeding to invalidate elements of New York City's Model Cities Program providing residents of Model Cities areas (designated areas within New York City) with preferential treatment in obtaining civil service appointments to the New York City fire department, police department and housing authority police force.

The city in keeping with the spirit of section 81 Civ. Serv. of the Civil Service Law, utilized the "preferred lists" to the extent that rank-order hiring would not violate CETA eligibility requirements (such as residency) (see, e.g., U.S. Code, tit 29, § 845, subd [c], par [3]). In such a manner the integrity of the civil service system was also protected (NY Const, art V, § 6; Matter of Maye v. Lindsay, 69 Misc.2d 276, revd 41 A.D.2d 127, revd and reinstated 33 N.Y.2d 552; compare U.S. Code, tit 29, § 845, subd [c], and § 848, subd [a]). Clearly petitioner was "not reinstated to [his] former position[s] as [a] * * * civil service [employee].

Certainly, the law is not to be enforced differently depending upon the subject's race or gender. Matter of Maye v Lindsay ( 69 Misc.2d 276, revd 41 A.D.2d 127, revd on opn at Special Term 33 N.Y.2d 552, cert den 414 U.S. 1069) is instructive on this point. There, the court stated (69 Misc.2d, at p 285): "[T]he various civil service commissions of the State have power to define jobs and to state and test for the requirements for the jobs.

Subdivision 2 of section 3 Pub. Off. of the Public Officers Law which is applicable here, prohibits a municipality from denying nonresidents appointment to its police force, provided that the person resides in one of several specified municipalities within the State. Subdivision 4 of section 30 Pub. Off. of the Public Officers Law prohibits certain municipalities from removing a police officer from his office on the grounds of nonresidency within the municipalities provided the officer is a resident of several of the enumerated counties within the State. Attempts by the City of New York to impose residency requirements on the municipal employees have proven fruitless as inconsistent with the afore-mentioned provisions of the Public Officers Law (Uniformed Firefighters Assn. v City of New York, NYLJ, Oct. 20, 1978, p 5, col 1, affd 71 A.D.2d 843; Matter of Maye v Lindsay, 33 N.Y.2d 552, revg 41 A.D.2d 127, affg opn of Mr. Justice SILVERMAN, 69 Misc.2d 276, cert den 414 U.S. 1069). Plaintiffs contend that section 822 is an attempt by the City of New York to accomplish by fiscal means that which is prohibited by statute; namely, to deny nonresidents employment in the city's uniform services.

Petitioners allege that the city's "adoption" of CETA's residence requirement is in conflict with subdivision 9 of section 3 Pub. Off. of the Public Officers Law, allowing a "paid member of the uniformed force of a paid fire department" to reside in specified areas outside the political subdivision in which he performs his functions. In this connection, petitioners principally rely upon Matter of Maye v Lindsay ( 69 Misc.2d 276, revd 41 A.D.2d 127, revd on opn at Spec Term 33 N.Y.2d 552). In the Maye case, Federal funds were made available to New York City under a model cities grant to create new civil service titles in the uniformed services.

The third case is that of Matter of Maye v. Lindsay ( 69 Misc.2d 276 [SILVERMAN, J.]), revd. 41 A.D.2d 127, revd. on opn. at Spec. Term 33 N.Y.2d 552). In that case, a program establishing positions comparable to civil service positions under the model cities program was invalidated.