
    In the Matter of Josef Einhorn et al., Petitioners, against Joseph A. McNamara et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Supreme Court, Special Term, New York County,
    June 16, 1949.
    
      Josef Einhorn and Edward Corsun, petitioners in person.
    
      John P. McGrath, Corporation Counsel (Robert E. Hugh of counsel), for respondents. .
   Schreiber, J.

Subdivision 4a of section V of rule V of the New York City Municipal Civil Service Commission Rules expressly authorizes the commission, whenever the pass mark in the scoring of a test has been established in terms of a percentage, to consider those candidates who obtain a rating within a fractional part above the next lower whole number as having attained such passmark. It follows that the commission properly accepted candidates whose marks were less than 70% but more than 69%. The fact that the written test stated that 70% was required ” does not, as petitioners contend, make the rule above referred to inapplicable. The statement that 70% was required constituted merely the fixation of 70% as a pass mark (see Matter of Lane v. McNamara, N. Y. L. J., Oct. 22, 1948, p. 882, col. 7, affd. 274 App. Div. 919).

Petitioners also contend that the position of bridge and tunnel lieutenant was of a technical character within the meaning of subdivision 3 of section V of rule V (supra) and that therefore no candidate could pass with a rating of less than 75%. In the court’s opinion, there was ample basis for the determination of the commission that the position was not of a technical character within the meaning of the section above referred to. Such determination may not be held to be arbitrary, whimsical or capricious.

For the reasons indicated, the motion is denied in all respects.  