
    (87 Misc. Rep. 448)
    PEOPLE ex rel. KEISLER v. MOSCOWITZ et al.
    (Supreme Court, Special Term, New York County.
    November 7, 1914.)
    1. Municipal Corporations (§ 217)—Agents and Employes—Civil Service Commission—Powers.
    Where a person who had passed a civil service examination had been guilty of questionable business transactions, resulting in a suit against him, in which it was stipulated that a simple judgment as for money had and received should be entered against him, such judgment did not prevent the municipal civil service commission from examining the evidence adduced on such trial in passing on his fitness for a position in the civil service, ana in determining whether his name should be removed from the eligible list.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 576, 577, 579, 580; Dec. Dig. § 217.*]
    
      2. Municipal Corporations (§ 217)—Agents and Employes—Municipal Civil Service Commission—Review op Acts.
    Under Const, art. 5, § 9, providing that appointment and promotions in the civil service shall be according to merit and fitness, to be ascertained by examinations, and the Civil Service Law (Consol. Laws, c. 7), authorizing civil service commissions to refuse to certify applicants lacking certain qualifications, or who have been guilty of infamous or disgraceful conduct, a municipal civil service commission had power to pass upon an applicant’s fitness of character, as well as his mental efficiency, and its judgment in the matter will not be interfered with, unless arbitrary.
    [Ed. Note.—For other cases, see Municipal Cornorations, Cent. Dig. §§ 576, 577, 579, 580; Dec. Dig. § 217.*]
    Mandamus by the People, on relation of Leo Keisler, against Henry Moscowitz and others, constituting the Municipal Civil Service Commission. On motion for peremptory writ. Motion denied.
    John T. Loew, of New York City, for relator.
    Frank L. Polk, and Henry J. Shields, Asst. Corp. Counsel, both of New York City, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Eep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GAVEGAN, J.

Motion for a writ of mandamus directing respondents, constituting the municipal civil service commission of the city of New York, to restore relator’s name to the eligible list for the position of court attendant.

Relator took part in and passed the examination held by respondents and was placed on the eligible list. Thereafter respondents examined into the character of relator, and after such examination removed his name from said eligible list. Article 5, § 9, of the state Constitution, provides in part:

“Appointment and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained so far as practicable, by examinations. * * * ”

In pursuance of this section of the Constitution the Civil Service Law was enacted, and it provided among other things, that the civil service commission should have the power to refuse to certify applicants who lack certain qualifications,'or who have been guilty of infamous or disgraceful conduct, or who have practiced any fraud in securing their eligibility or appointment. Pursuant to these provisions the respondents examined into the relator’s character, and for reasons which developed from said examination ordered that his name be stricken from the eligible list. Subsequently, at his request, a rehearing was given the relator, but without changing the respondents’ decision.

While respondents gave no special reasons for removing relator’s name from the eligible list, it is apparent that questionable business transactions between the relator and one of his associates greatly influenced the respondents in their decision. These transactions resulted in a suit against the relator, at the trial of which counsel for both sides stipulated that a simple judgment as for money had and received be entered against relator. Said judgment was never paid, and has been included by relator in the schedule accompanying his petition in bankruptcy. I do not think the judgment in the action in the Supreme Court is binding on the respondents to the extent of precluding them from examining into the evidence which was adduced. In Desbecker v. Cauffman, 169 N. Y. 547, 62 N. E. 674, depositions in supplementary proceedings were held to be properly admitted on a subsequent trial against the parties making the depositions, either as admissions or as affecting their credibility. I am of the opinion that in the hearing before the respondents the same principles are applicable, and that any testimony adduced at the trial of the action in the Supreme Court should be admissible in order to determine the character of the relator as well as his veracity and credibility.

Moreover, relator in his examination before the respondents admitted that the judgment in the Supreme Court was not on the merits. Respondents’ power to pass upon the fitness of candidates includes fitness of character as well as mental efficiency. They are the sole judges in the matter, and the court will not interfere, unless their determination is arbitrary, any more than it would interfere with respondents’ determination on the question of relator’s mental and physical qualifications after an examination. I do not consider that respondents’ action was arbitrary.

Motion denied.  