
    The People of the State of New York ex rel. Antonio M. Caridi, Respondent, v. James Creelman and Others, Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    First Department,
    May 31, 1912.
    Civil service — employment of expert examiners — mandamus — failure to allege civil service rules — acts not making examination void — court — power to review acts of civil service commissioners.
    Civil service commissioners of the city of New York when holding a competitive examination for the position of interpreter of foreign languages, may employ experts to conduct the examination.
    On a mandamus proceeding to compel the civil service commission of the city of New. York to cancel the list of ratings in a competitive examination, the court will not take judicial notice of the fact that special examiners appointed by the commissioners were employees of a department of the city government, so that their selection was prohibited by a civil service rule, if such rule be not pleaded.
    The court on mandamus will not set aside the ratings of the civil service commission on the claim that certain of the applicants obtained undue advantage by being allowed to participate in the examination after other candidates had finished, so that they might have obtained advance information as to the questions, where it does not appear that the civil service commissioners were aware of the fact or that the relator was prejudiced thereby, he not showing that he was not one of those to whom such information was communicated.
    The court will not conduct or supervise civil service examinations nor review them by certiorari, the official acts of the commissioners not being judicial in a technical sense but executive, ministerial and administrative.
    Appeal by the defendants, James Oreelman and others, constituting the municipal civil service commission of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Mew York on the 8th day of April, 1912, denying the defendants’ motion for judgment on the pleadings.
    
      Elliot S. Benedict. [Terence Farley with him on the brief], for the appellants.
    
      Alfred J. Talley [Denis R. O’Brien with him on the brief], for the respondent.
   Laughlin, J.:

• 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 Mew 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 seventy-five and forty one-hundredths, the minimum required being seventy per cent, 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 forty per cent was allowed, translation of English into Italian, Italian into English, and English composition, for each of which twenty 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 persons 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 not placed on the eligible list, or they were rated so low that their names appeared very low on it; that “ after certain of the candidates had completed their oral examination, they informed other candidates who were called later in said examination of the matter upon which they were examined, and that said candidates coming later as aforesaid, were asked the same questions as those who had preceded them, and were given the same subject-matter to translate which they had been informed in advance was being asked by the said examiners, so that certain persons in said examination had the advantage of knowing the questions which were asked before they entered said examination, and were thereby given an undue advantage over those who participated in said examination and who had not such previous knowledge; ” that the examination was not a fair, open and competitive examination, and “that it was conducted contrary to law and contrary to the rules of the Municipal Civil Service Commission; ” that the action of the respondents in establishing said! list, unless annulled and set aside'by the court, will impair, impede and injure the rights of the relator, and that he has suffered and will suffer pecuniary loss and injury in consequence.thereof; and that the relator has demanded that the respondents cancel and set aside said examination and they have refused to do so. By the alternative writ, the respondents were commanded to annul the examination and the eligible list prepared therefrom, or show cause why they should not do so.

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. The objection in this regard appears to be that such examiners were employees 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.) 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.

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, is neither reviewable by certiorari nor in a taxpayer’s action, and that the oficial acts of the commissioners are not judicial, in the technical sense, but are executive, ministerial or administrative. (People ex rel. Schau v. McWilliams, 185 N. Y. 92; Slavin v. McGuire, 205 id. 84; Matter of Simons v. McGuire, 204 id. 253. See, also, People ex rel. Republican & J. Co. v. Wiggins, 199 N. Y. 382.) 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 has been violated. 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 facts sufficient to warrant the relief for which the relator prays.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order to be settled on notice.  