
    In the Matter of Anna Hubbard, Petitioner, against Joseph A. McNamara et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Supreme Court, Special Term, New York County,
    September 6, 1949.
    
      Emil K. Ellis for petitioner.
    
      John P. McGrath, Corporation Counsel (Robert E. Hugh of counsel), for respondents.
   Corcoran, J.

This is an application under article 78 of the Civil Practice Act for an order directing the municipal civil service commission to remove from the promotion eligible list of deputy superintendent of women prisoners, department of correction, the name of Loretta Y. Moran.

Miss Moran took a competitive examination, the passing mark of which was 70%. She received a grade of 69.5%. The commission passed her pursuant to the provisions of subdivision 4a of section Y of rule Y of its rules. That rule provides that “Whenever the pass mark * * * of an examination has been established in terms of a percentage, candidates obtaining a rating within any fractional part above the next lower whole number shall be considered as having attained such pass mark.” The validity of the rule has been upheld in Matter of Lane v. McNamara (274 App. Div. 919). It follows that any candidate receiving a mark of 69% and a fraction passed the examination. The petitioner contends that the rule should not he applied in this case because of unusual circumstances. Miss Moran and the petitioner were the only eligibles to pass the examination, the petitioner receiving the higher mark. Miss Moran, however, has veteran status and is entitled to a preference over the petitioner. The petitioner claims that the application of the rule under such circumstances is unfair and unreasonable in that it will work a preference of one having a lower mark over one having a higher mark. That is not so, however. It is not the application of rule V which has worked the preference. Miss Moran merely passed the examination by reason of the application of the rule. She was still second to the petitioner. It was the application of the veterans’ preference, to which Miss Moran was entitled, that moved her above petitioner on the list.

The petition is dismissed.  