
    The People of the State of New York ex rel. Juliette Arden, Appellant, v. Frank Gallagher and Others, Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    First Department,
    December 31, 1913.
    Civil service — Hew York city — position of fire prevention inspector — establishment of. separate eligible lists for men and women — mandamus.
    The municipal civil service commission of the city of New York may, in its discretion, after an examination for the position of fire prevention inspector, establish separate eligible lists for men and women, and a writ of mandamus will not be granted to compel the establishment of a single list containing the names of both men and women.
    Appeal by the relator, Juliette Arden, 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 28th day of November, 1913, denying the relator’s motion for a peremptory writ of mandamus.
    
      John E. O'Brien, for the appellant.
    
      Terence Farley, for the respondents.
   Scott, J.:

The relator seeks by writ of mandamus to compel the defendants, constituting the municipal civil service commission of the city of New York, to establish one continuous eligible list upon which they shall enter the names of all the persons, both men and women, who passed the examination for the position of inspector, fire prevention bureau, grades 2 and 3, conducted by said municipal civil service commission on December 26 and 27, 1912, all said names to be inserted on said list in the order of their average rating secured on said examination.

The bureau of fire prevention is a bureau of the fire department, and the necessity of the appointment of inspectors results from the duties imposed upon the fire commissioner by section 727 of the Greater New York charter (Laws of 1901, chap. 466), as amended by chapter 899 of the Laws of 1911. (Since amd. by Laws of 1912, chap. 458, and Laws of 1913, chap. 698.)

In March, 1912, the first advertisement for the examination of applicants for the position of fire prevention inspector was published in the official paper. It contained no specification as to the sex of applicants, but stated as one of the qualifications that “the candidate should have had experience as builder, architect or inspector.” The time fixed for receiving applications under this advertisement expired April 3, 1912. The relator did not apply in response to this advertisement. On April 15, 1912, a second advertisement of such examination was commenced, which referred especially to female applicants and which omitted the requirement that the applicant should have had experience as builder, architect or inspector. The relator filed her application in response to this advertisement on April 15, 1912. The examinations for both men and women were held on the same day, and the same written questions were put to both. The commissioners, after deliberation, decided to establish and did establish two eligible lists, on one of which were placed the names of the men who had passed the examination, and on the other the names of the women who had passed. The object of this proceeding is to overrule this action of the commission and to compel the establishment of a single list containing the names of both men and women.

We agree with the learned justice at Special Term that the action of the commission in establishing the two eligible lists is a reasonable exercise of discretion which offends against no law and which should not be interfered with by the court. (Matter of Schlivinski v. Maxwell, 80 App. Div. 313.) The establishment of separate eligible lists for men and women is no new thing, and, as we are informed by the affidavit of one of the defendants, has never before been attacked. It is quite obvious that there must be positions as to which such separate lists ought to be promulgated, for the immutable difference in the ability to do certain kinds of work between men and women must be given due consideration. Whether or not such differences apply to any particular occupation depends upon the nature of the duties to be performed, and the determination as to this rests, in the first instance at least, with the civil service commission and the appointing power. Certainly unless it appears, as it does not appear in this case, that this discretion has been abused no right has been violated which would warrant the interposition of the court by its writ of mandamus.

The order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  