
    The People of the State of New York ex rel. Luke Smith, Respondent, v. James Creelman and Others, Constituting the Municipal Civil Service Commission of The City of New York, Appellants.
    First Department,
    March 22, 1912.
    Municipal corporations — section 284 of the Greater Mew York charter construed — appointment of patrolman — age qualification.
    Section 884 of the Greater Mew York charter, as amended by Laws of 1908, chapter 618, and Laws of 1907, chapter 878, providing that “no person shall be appointed patrolman who shall be at the date of placing his name on the civil service eligible list over thirty years of age,” means that the applicant shall not be over thirty years of age at the time of the final completion of the whole process of examination and the computation of the result.
    Hence, an applicant for patrolman, who after passing all his examinations becomes thirty years of age seven days before his name is placed upon the eligible list, is disqualified.
    Appeal by the defendants, James Creelman and others, constituting the mimicipal 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 New York on the 6th day of February, 1912, granting the relator’s motion for a peremptory writ of mandamus commanding the defendants to forthwith place the relator’s name on the eligible list for the position of uatrolman of the police department.
    
      Elliot S. Benedict of counsel [Terence Farley with him on the brief], Archibald R. Watson, Corporation Counsel, for the appellants.
    
      Alfred J. Talley, for the respondent.
   Clarke, J.:

Relator became thirty years of age on the 25th of September, 1911. In September, 1910, he filed an application for appointment as patrolman in the police department. He thereafter received notice to appear before the examiners of the municipal civil service commission, and on March 1, 1911, appeared and submitted to a physical examination. Two thousand two hundred and ninety applicants appeared for the medical test, of whom 1,460 were passed. Of the 1,460 who took the physical tests 1,322 passed. The examinations were held on twenty-five different days before all of the candidates could be examined and were concluded on May 10, 1911. On July 14, 1911, notices were sent out to all those who had successfully passed the medical and physical tests to appear for the mental examination upon August 1, 1911. One thousand one hundred and eighty-five applicants appeared for said examination. The final examination of the papers of these candidates and the computation of their marks was finished October 2, 1911, and the chief examiner notified the commission that the marks had been made up and placed upon the schedule sheet. From this sheet the eligible list also was made up, omitting the names of all those who failed to pass the examination or were in any way disqualified. Among those who were disqualified by reason of the fact that he had become thirty years of age before the completion of the schedule sheet was the relator. For that reason his name was not placed upon the eligible fist which was established on October 2, 1911.

Section 284 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1903, chap. 612, and Laws of 1907, chap. 278) provides: “No person shall be appointed patrolman who shall be at the date of placing his name on the civil service eligible fist over thirty years of age.” The relator claims and it is not denied that he passed said examinations successfully, receiving more than the required minimum percentage, which was seventy per cent. He also claims that the establishment of said eligible list was completed and all papers therein rated on or about the 10th day of August, 1911, on which day deponent was under the" age of thirty years, not having arrived at said age until the 25th day of September, 1911. He applied for a peremptory writ of mandamus commanding the civil service commission to place his name on the eligible list and to certify his name in its proper order to the police commissioner for appointment. The learned Special Term having granted the application this appeal is taken.

Prior to 1903, section 284 of the charter provided that “No person shall be appointed patrolman who shall be at the date of appointment over thirty years of age.” (Original Charter, Laws of 1897, chap. 378; Revised Charter, Laws of 1901, chap. 466.) It could well happen that a candidate who had successfully met all the requirements of the various examinations . and had been duly placed upon the eligible list for appointment could thereafter lose his right to the appointment by mere efflux of time, no vacancy occurring and no certification having been made before he had arrived at the age of thirty years. In 1903 the Legislature altered the law so that the limitation of age should apply to the placing of the applicant’s name upon the eligible list and not to the time of appointment and these provisions were re-enacted in 1907.

It is obvious that where an age limitation is provided, no rule establishing the event determining the limitation can be devised which may not work apparent hardship in an individual case. The Legislature evidently thought that it was fairer to fix this event as of the time of going upon the eligible list rather than as of the time of appointment. But some definite and easily ascertainable time had to be fixed. So it was established to be “At the date of placing his name on the civil service eligible list.” This does not mean the taking of the examination, nor the examination of the candidates’ papers by the examiners, nor the marking thereof by said examiners, but it means and must mean the final completion of the whole process of examination and computation as the result of which not only the individual’s competence but the relative standing of all the candidates is ascertained and fixed and a definite list thereof prepared.

During the whole period of the medical, physical and mental examinations and the review of the papers and the computation of the marks here under consideration, and up to the 2d of October, 1911, when this list was established, there was in existence an eligible list for the position of patrolman which had been established June 18, 1910, and from which appointments were being made continuously. From August 1 to October 2, 1911, seventy-five patrolmen were appointed from that list. It is evident that the name of the relator had' been placed on no eligible list up to the 2d of October, 1911. That seven days before said date he arrived at the age of thirty years and had, therefore, become disqualified was his misfortune. But a hardship to an individual does not authorize the court to disregard the plain provisions of law.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the application denied, with ten dollars costs to the appellants.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  