
    William H. Hodgins, Respondent, v. Theodore A. Bingham, Appellant.
    First Department,
    December 30, 1910.
    Libel—police commissioner—certifying record of police captain to municipal civil service commission — opinion as to candidate’s efficiency.
    A complaint which alleges that plaintiff was a police captain in New York city and a candidate for promotion to the office of' inspector; that to become an inspector it was necessary for him to take a civil service examination; that by the civil service rules the conduct and efficiency of a candidate, as determined by his efficiency record or otherwise determined in a manner prescribed by the' rules, was to. count fifty per cent; that the defendant, who was at the time police commissioner, certified to plaintiff’s efficiency record, but added thereto the words “ On his record poor; has not the qualities for inspector's command; stupid; ” that by reason of such additional statement, alleged to be untrue, plaintiff’s rating was lower than it otherwise would have been; that he, therefore, failed to receive promotion.to the rank of inspector which he would otherwise have had, and so lost the additional compensation, does not state facts sufficient to constitute a cause of action.
    The municipal civil service commission had a right to ask the opinion of the police commissioner as to the fitness of candidates, and he to give it.
    That the commission was influenced by the words complained of is a mere conclusion of the pleader.
    It is likewise merely a conclusion to allege that, if plaintiff’s fating bad been higher, he would have been promoted, for the fact that one is rated highest on a civil service list does not entitle him to an appointment.
    Dowling, J., dissented, in memorandum.
    Appeal by the defendant, Theodore A. Bingham, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of October, 1910, upon the decision of- the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.
    
      John McG. Goodale. for the appellant.
    
      A. S. Gilbert, for the respondent.
   .McLaughlin, J.:

The defendant demurred to the complaint upon the ground that the facts stated did not constitute a cause of action. The demurrer "Was overruled and he appeals from the interlocutory judgment.

It is somewhat difficult to determine just what the plaintiff’s - counsel conceives to be the character of the action. - The allegations of the complaint would seem to indicate that it was to recover- damages for a libel, while the brief presénted by him indicates that it is to recover damages for “ misfeasance or non-feasance of a public officer.” However, it is not very important, because in either case I do not think the complaint states a causé of action. It alleges in substance that the plaintiff was a police captain in the police department of the city of Hew York, and as such, in December, 1906, was a candidate for promotion to the office of inspector of police; that at that time the defendant was the police commissioner; that in .order to become an inspector it was necessary for the plaintiff to enter a competitive examination held by the municipal civil service commission; that the commission, in order to enable it to properly hold such examination, adopted certain rules and regulations with reference to the rating of police captains; that pursuant to one of these rules and regulations, or some provisions thereof, it was the duty of the defendant as police commissioner to keep a record of the efficiency, character and conduct of the plaintiff as a member of the police force, which should be known as the efficiency record; that such rules and regulations further provided that prior to an examination for promotion of members of the police force it was the duty of the defendant as police commissioner.to furnish a true and correct certification of the efficiency record of each candidate for promotion; that another rule of the commission provided.that the subject of rating and the relative weight thereof in any competitive promotion examination was as follows: For comparative conduct, seniority and efficiency in previous service as may be determined from the transcript of the efficiency record (or as may Toe otherwise determined under paragraph 8 of this rule) * * * 50; and for written papers on pertinent subjects, 50;” that on or about the 31st of December, 1906, the municipal civil service commission held a competitive examination for promotion of captains . of the police force to the rank of inspectors, at which plaintiff was a candidate, and took the examination; that pursuant to the rules and regulations of the commission the defendant as police commissioner certified to it in advance of the examination the efficiency record of this plaintiff, and that “the defendant, in spite of the previous good record of the plaintiff as stated in said certification, did thereupon, in addition to the aforesaid,, wantonly, wilfully, maliciously and untruthfully certify, * * * concerning the plaintiff and of his record, * * * the following: 6 On his record, poor; has not the qualities for inspector’s command; stupid; ’ ” that such additional statements were untrue, and by reason of that fact the commission gave the plaintiff a rating lower than it otherwise would have given him; that had he received the rating which, except for such additional statements he would have received, he would have been promoted to the rank of inspector, and received by reason thereof additional compensation; that, to the extent of- such additional compensation, plaintiff had been damaged in the sum of $100,000, for which judgment was demanded. ' ■

The complaint will he searched in vain for the allegation of any facts from which it can be said that the" plaintiff lias sustained any damage whatever other than the pleader’s conclusion on that subject. The defendant certified to the' commission the plaintiff’s record; that is, the efficiency record required by the rules and regulations, Ho complaint is made in this respect, but the allegation is that the commissioner, “in addition” thereto, certified that ■the plaintiff was stu-pid; on his record, poor, and that he did not have the qualities' to make a good inspector. This was but the expression of the opinion of the defendant as .police commissioner, and could not have been otherwise understood by the commission, because it had before it the efficiency record which indicated his - efficiency, character and conduct so far as the ¿ame were evidenced by what he had actually done while on the police force. If, anything were omitted from this efficiency record which ought to have been included by the defendant, then the plaintiff has failed to set the same forth in his complaint. But the commission was not bound by such record. It might otherwise determine the plaintiff’s efficiency, as provided in part 8 of the rule relating to that subject. It had a perfect right to ask the defendant what his opinión was, and he could give" it. To what extent the commission should rely on his opinion was entirely :for it to determine, and in this connection it is to be noted there are no allegations in the Complaint, other than the conclusions of the pleader, from which it can be determined to what extent, if any, the commission Was influenced by the opinion expressed.

Then, too, had the plaintiff received a higher rating than he did, it does not follow that he would have been appointed an inspector. He would have been eligible for appointment, but whether he would have actually been appointed is éntirely speculative. The fact that a person is rated highest under the civil service does not, in and of itself, entitle him to an appointment. (People ex rel. Balcom v. Mosher, 163 N. Y. 32; People ex rel. Baldwin v. McAdoo, 110 App. Div. 432.)

It seems to me, therefore, that whether the action be considered as one to recover damages for a libel or for misfeasance or nonfeasance of a public officer, the same conclusion follows — the complaint in either case fails to state facts sufficient to constitute a cause of action.

The interlocutory judgment appealed from, therefore, is reversed, with costs, and the demurrer sustained, with costs, with leave to the- plaintiff to serve an amended complaint on payment of the costs in this court and in the court below.

. Ingraham, P. j., Lahghlin and Miller, JJ., concurred; Dowling, J.] dissented in memorandum.

Dowling, J.

(dissenting): ■

I dissent. In my opinion, a good cause of action in libel is set forth in the complaint herein.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  