
    In the Matter of the Application of Johnston MacLeod, for a Writ of Mandamus, Relator, v. John C. McGuire, President, Richard Welling and Alexander Keogh, Composing the Municipal Civil Service Commission, Respondents.
    (Supreme Court, Queens Special Term,
    March, 1911.)
    Civil service — In general—Adoption of regulations and classifications — Powers of municipal civil service commissioners.
    The question whether the position of coroner’s physician of the borough of Brooklyn is a confidential one cannot be determined as matter of law; its determination is within the powers of the municipal civil service commission and the determination by said commission of that question, as well as the practicability of including the position in the competitive class, should stand upon an application for a peremptory mandamus.
    Application for a peremptory writ of mandamus.
    Cumming & Webster (George R. Cooper, of counsel), for relator.
    Archibald R. Watson (Edward S. Malone, of counsel), for respondents.
   Garretson, J.

If the position of coroner’s physician be not a confidential one, then the act of the municipal civil service commission in classifying it in the competitive class mus-t be held to be valid. This classification involves the determination by the commission that it is practicable to determine the merit and fitness of the applicants- thereto by competitive examination. It is not in the exempt class, as specifically named in the civil service laws. Laws of 1899, chap. 390, as amd. by Laws, of 1900, chap. 195, § 13, now Consolidated Laws 1909, chap. 7. Bor does it appear that it is impracticable to include it in the competitive class and, hence, that it should be included in the non-competitive class. Id., § 17. Having regard to the definition of the meaning of “ confidential,” as given by the Court of Appeals in People ex rel. Crummey v. Palmer, 152 N. Y. 217-j220, and the prescribed duties of the position as set forth in section 1773, chapter 410 of the Laws of 1882, being the “ 'Consolidation Act,” it cannot well be said, as a matter of law, that the commission' had not the power to make the classification which it has made. Besides, whether the position should be classified as competitive or non-competitive rested in the exercise of the judgment of the commission. As was said by Chief Judge Cullen in People ex rel. Schau v. McWilliams, 185 N. Y. 92: “ Where the position is one, as to- the proper mode of filling which there is fair and reasonable ground for difference of opinion' among • intelligent and conscientious officials, the action of the commission should stand, even though the courts may differ from the commission as to the wisdom of the classification. * * * We ought not to interfere with the determination of the commissioners that it should be filled by competition- and if they had decided that the position should be filled without competition, equally ought we to refrain from interference. The position lies in that field where the action of the commission should be final.”

I am of the opinion that the relator has not just ground for complaint against the defendants; that he has not- shown a clear legal right to the writ, and that his motion should be denied. Motion denied, with thirty dollars costs.

Motion denied.  