Firshein v. Reavy , 33 N.Y.S.2d 894 ( 1942 )

Schenck, J.

This court may not conduct or supervise civil service examinations nor review them, the official acts of the Civil Service Commission not being judicial, but rather executive, ministerial and administrative. (People ex rel. Caridi v. Creelman, 150 App. Div. 746; People ex rel. Schau v. McWilliams, 185 N. Y. 92.)

The appellant here asks for an order pursuant to article 78 of the Civil Practice Act directing respondents to nullify and cancel the examination held on November 16, 1940, for the position of unemployment insurance referee, declaring null and void the said examination, restraining the respondents from announcing the results of said examination, enjoining the respondents from promulgating and certifying any lists resulting from said examination or from utilizing the examination or lists resulting therefrom, and directing the respondents to hold a new examination.

, It may not be found that the acts of the respondents were unreasonable, discriminatory, capricious, arbitrary or palpably illegal. Two thousand six hundred and forty-three applicants took the examination for unemployment insurance referee, of which 933 passed Part 1,-and 882 passed both Part 1 and Part 2.

Petitioner-appellant complains, among other things, that the examination was voluminous and prolix and the time insufficient to give adequate consideration to the questions; that the printing arrangement on the question booklet tended to cause mental and physical strain; that there were inadequate eating facilities in the eignhborhood; and that a portion of the questions set forth in the examination paper was unrelated to the duties of the position for which the candidates were tested. Obiously, these are matters which must be left to the administrative discretion of the respondents. We may differ from the Commission as to the wisdom of presenting the questions found in the examination booklet; we may differ with the Commission as to the length of time afforded for the completion of the examination and even as to the eating facilities; however, this court may not substitute its judgment for that of the Commission and may interfere only when the Commission’s actions have been erroneous, arbitrary, capricious, discriminatory or palpably illegal. (People ex rel. Moriarty v. Creelman, 206 N. Y. 570.)

It is the function of the Commission to fix a fair and reasonable standard by which may be tested the qualifications of applicants for appointment. “ The exercise of that function may be the subject of judicial review only in the event of a clear showing that in fixing the test of fitness the action by the Commission was arbitrary, capricious or unreasonable.” (Matter of Cowen v. Reavy, 283 N. Y. 232; People ex rel. Sweeney v. Rice, 279 id. 70.)

The Commission is charged with the examination and certification of persons seeking employment in the civil service and may use the methods which it deems best adapted for the determination of fitness, and while persons of reasonable intelligence may differ as to the scope and character of the examination, the judgment of the Commissioners in the preparation of the same must prevail in the absence of proof of bad faith or illegal action. (Davis v. Wiener, 260 App. Div. 127; People ex rel. Moriarty v. Creelman, supra.)

Here the Commission charged with the preparation and conduct of the examination adopted what it believed to be the best method for the determination of fitness of a great number of applicants. The members of the court may not agree as to the method adopted, the time allowed or the character of the questions presented, nevertheless, this difference of opinion does not warrant the cancellation of a state-wide competitive examination in which upwards of 2,500 persons participated. The determination as to the character and scope of the examination was for the Commission.

The order appealed from should be affirmed.

Bliss, Heffernah and Foster, JJ., concur; Hill, P. J., dissents, in an opinion.