
    In the Matter of Leonard Fragomeni, Appellant, against Lewis A. Wilson, as Commissioner of Education of the State of New York, Respondent.
   Appeal by petitioner from an order of the Supreme Court at Special Term entered March 23, 1951, in Albany County, which dismissed a proceeding brought under article 78 of the Civil Practice Act to review a decision of the respondent which denied petitioner’s application for a certificate of certified public accountant without examination, under the provisions of chapter 340 of the Laws of 1947. Petitioner applied for a certificate of certified public accountant without examination under the provisions of chapter 340 of the Laws of 1947 (Education Law, § 7404). His application was denied by the State Board of Certified Public Accountant Examiners. Upon appeal to the Commissioner of Education, the commissioner has now reviewed the application on its merits and dismissed the appeal. In a proceeding to review the commissioner’s action, brought under article 78 of the Civil Practice Act, the Supreme Court at Special Term dismissed the proceeding on the merits, and ordered stricken from the petition new matter in the form of affidavits which were not before the commissioner. From this order petitioner appeals to this court. This new matter was properly stricken, as otherwise the court would not be acting in review, but would be acting de novo. The Commissioner of Education has held that petitioner’s experience does not meet the requirements of the statute. The nature and quality of the experience and its sufficiency to meet the statutory requirement is a matter of judgment, to be exercised by the licensing agency, subject to review by the commissioner. Upon this record we may not say that the respondent exercised that judgment arbitrarily or capriciously. Order affirmed, with $10 costs.

Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part.  