People ex rel. Caridi v. Creelman

The respondents in this proceeding demurred to-the alternative writ of mandamus issued herein, upon the ground that it appears upon the face thereof that it does not state facts-sufficient to constitute a cause of action, and thereupon moved on the pleadings for judgment dismissing and quashing the writ.

The material allegations of the alternative writ; with respect to-the point presented for decision, are: That the respondents, who-constitute the Municipal Civil Service Commission of the City of New York, duly invited applications to enter an examination for the position of Italian interpreter, with a knowledge of the Sicilian, Calabrian, and Neapolitan dialects. That the relator duly filed an application therefor and was duly notified to appear for examination on the 10th day of August, 1911. That he successfully passed the-examination, his percentage being 75.40, the minimum required being 70, and his name was thereupon placed thirty-sixth on the eligible-list. That the respondents employed three experts as special examiners, two of whom were in the employ of the board of education at the college of the city of New York. That no rating for experience was given on the examination, although the applicants-were required to set forth their experience in their applications. That the examination consisted of an oral examination, for which 40 per cent, -was allowed, translation of English- into Italian, Italian into-English, and English composition, for each of. which 20 per cent, was allowed. That the special examiners prepared the paper for translation of Italian into English,' but did not make the rating therefor, and that the rating therefor was made by others not familiar with the Italian language, or competent to examine and mark the.papers. That many person's who competed on the 'examination were born in sections of Italy where said dialects were spoken and. were familiar therewith, and had had “long and varied” experience as interpreters in the courts of New York; but their names were-

It thus appears that this is a proceeding to annul an examination held by the Municipal Civil Service Commission upon the ground of irregularity in the manner in which they conducted the examination. It was manifestly proper for the commissioners to employ experts to conduct this technical examination, and it does not appear that they were guilty of any misconduct in selecting the special examiners, or even that the special examiners were not entirely competent, and in fact the most competent that could have been obtained.

■ [1] The objection in this regard appears to be that such examiners were employés of a department of the city government and that their selection was prohibited by a civil service rule. The court, however, cannot .take judicial notice of such rule, and it is not pleaded. People ex rel. Langdon v. Dalton, 46 App. Div. 264 , 61 N. Y. Supp. 263 . It is not shown that the papers that were not marked by the special examiners were improperly marked by others. Most of the allegations are in the nature of conclusions of law rather than statements of facts. The real ground of complaint evidently is that some of the applicants obtained information in advance of their examination from some of the candidates who had been examined. It does not appear that the Municipal Civil Service Commissioners were aware of this; nor does it clearly appear that the relator was prejudiced thereby, for it is not shown but that he was one of those to whom the information was communicated.

[2] The court can neither conduct nor supervise civil service examinations. It has been held that the action of civil service commissioners in making classifications,. and making and amending rules,

[3] The effect of the adjudications appears to be that the acts of such commissioners may only be questioned in the court in a mandamus proceeding, and that the remedy afforded by mandamus in such cases is very limited, and exists only where some provisions of the Constitution or of a statute which vests no discretion in the commissioners have been violated.

[4] It is perfectly plain that the facts alleged in the alternative writ afford no basis for annulling the examination and the eligible list based thereon. If the examination was not conducted in accordance with rules binding on the commissioners, the rules should have been pleaded. The mere allegation that it was not so conducted is insufficient. Relief might have been afforded by the commissioners on the facts alleged in the alternative writ; but the court cannot say as matter of law that their action in holding the examination and in preparing an eligible list therefrom is a nullity, and therefore the alternative writ fails to state faults sufficient to warrant the relief for which the relator prays.

_ It follows that the order should be reversed, with $10 costs and disbursements, and motion granted, with $10 "costs. All concur.