
    The People of the State of New York ex rel. John B. Van Petten, Respondent, v. Willard A. Cobb and Others, Constituting the New York Civil Service Commission, Appellants.
    
      Civil service — striking a name from the list of eligibles, improper — mandamus.
    
    No power is conferred by the Civil Service Act (Chap. 354 of 1883) or elsewhere upon the New York Civil Service Commission to strike from the list of eligibles, on account of his advanced age and feeble physical condition, the name of a veteran of the civil war who has been duly and regularly examined and placed on the list.
    The fact that on' his examination the commission chose to r.ely upon the certificate of the applicant’s physician, and not upon its own examination, as to his physical condition, has no hearing upon the question.
    The statute contemplates as the remedy for any mistake in the name being placed on the eligible list the probationary appointment. ■
    In any event the name cannot be taken from the list without action of the commission met as a body to determine as to his eligibility.
    The applicant’s remedy for the improper removal of his name 'is by mandamus. -
    Appeal by the defendants, Williard A. Cobb and others, constituting the New York Civil Service Commission, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the lltli day of November, 1896, directing the issuance of a -peremptory writ of mandamus requiring them to place the name of the relator on the list of persons eligible to be appointed as special agents under chapter 112 of the Laws of 1896.
    
      T. E. Hancock, Attorney-General, and G. D. B. Hasbrouck, for the appellants.
    
      Arthur L. Andrews, for the. respondent.
   Putnam, J. :

The New York Civil Service Commission appeal from an order granted at Special Term, directing that a peremptory writ of mandamus issue requiring it to restore the name of the relator, John B.

Van Petten, to the list of persons eligible to be appointed as special agent under the “ Liquor Tax Law.”

On June 20,1896, a notice having been duly given that an examination for applicants for appointment as special agents under the “ Liquor Tax Law ” would take place before the Civil Service Commission at Albany, Van Petten, an honorably discharged Union soldier, applied for entrance to the examination, at the same time filing a certificate of honorable discharge, and furnishing, as required by the civil service rules, the certificate of a physician and of three reputable citizens as to his physical ability, good character, etc. An examination was held on the 24th day of June, 1896. On the twenty-second day of July relator received notice that he had passed the examination and stood number two on the list of persons eligible to be appointed special agents in the third judicial district of the State. On or about the eighteenth day of September the commission removed the name of the relator from the said list. No notice was given to him that any Objection was made to the retention of his name upon the list of eligibles, or that any action was to be taken looking towards its removal, and he did not know until he received a communication from the secretary of the commission on September 28, 1896, that such action was to be taken or was contemplated. On the hearing in the court below, affidavits of Mr, Lyman, the State Commissioner of Excise, and Mr. Angle, the secretary of the commission, were read, to the effect that Mr. Van Petten, by reason of his advanced age and feeble physical condition resulting in lameness and general decrepitude, was physically disqualified from performing the duties of special agent under the Liquor Tax Law.”

It is provided by section 9, article 5 of the Constitution, that “ Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this State, shall be entitled to preference in appointment and promotion without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.” And by section 1, chapter 821, Laws 1896, it is provided that “in every public department and upon all public works of the State of New York, and of the -cities, counties, towns- and villages thereof, and also in non-competitive examinations under the civil service rules, laws or regulations of the same, wherever they apply, honorably discharged Union soldiers, sailors and marines-shall be preferred for appointment, employment and promotion. age, loss of limb or other physical impairment which does not, in-fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved.” In The Matter of Keymer (148 N. Y. 219-225) Bartlett, J., remarks, in reference to the above-quoted provision of the Constitution : “ It seems to us clear that this section of the Constitution, read according to its letter and spirit, contemplates that in all examinations, 'competitive and non-competitive, the veterans of the civil war have no preference over other citizens of the State, but when, as a result of those examinations, a list is made up from which appointments and promotions can be macle, consisting of those whose merit and fitness have been duly ascertained, then the veteran is entitled to preference; without regard to-his standing on that list.”

In response to the notice that an examination would be had for applicants for appointment as special agents under the “ Liquor Tax Law,” the relator having appeared before the commissioners, and having furnished the certificate of a physician and three citizens as to his physical abilities and good character, as required by the rules of the commission, and submitted to the examination required, and having passed (the commissioners calling for no proof of his physical condition except that furnished by the certificate of his physician), and by the decision of the commissioners his name having been placed-on the list of persons eligible for the appointment — after such examination and finding, under the provisions of the Constitution above quoted and of section 1 of chapter 821, Laws of 1896, was entitled to a preference for the appointment of special agent under the Liquor Tax Law.”

. "We are unable to find any provision in the Civil Service Act (Chap. 354, Laws of 1883), or elsewhere, conferring power on the defendants to arbitrarily deprive one whom they had duly and regularly examined and placed on the list of those eligible for appointment-, of the right acquired by such determination. If the commissioners make a mistake in placing on the eligible list one not qualified, the act in question affords a remedy. Section 2,'subdivision 3, provides that “ there shall be a period of probation before any absolute appointment or employment aforesaid,” and (§ 2, subd. 8) that “ notice shall be given in writing by the appointing power to said commission -x- -x- -x- of the rejection of any such person after probation.” Hence, the statute apparently contemplates a probationary appointment as a remedy in case of an error or mistake of the commissioners arising from an insufficient examination or otherwise, and not an arbitrary rescission by them of their former determination.

We are of opinion that the relator, after he had appeared before the commissioners and submitted to the examination required, and after he had been placed by them second on the list, by their determination as to his eligibility, was, under the provisions of the Constitution and statute'above quoted, and the Civil Service Act of 1883, legally entitled to a preference for appointment, of which he could not be arbitrarily deprived. And this is so, although the commissioners did not give relator a physical examination. They had the right to do so. Van Petten was properly before them and submitted to the examination they required. He was legally entitled to an examination and to the decision of the commissioners after such examination as to his eligibility. They chose to rely on the certificate of his p>hysician as evidence of his physical condition. Although they placed him on the list without a proper examination as to his physical fitness, their action in the matter and their determination could not he .vacated by them, at least without notice to-him, and an opportunity to be re-examined and heard.

It is not-necessary to determine whether or not the commissioners, on receiving the communication from the State Commissioner of Excise, referred to in the papers, could have required Yan Petten to appear before them again and submit to a further examination as. to his physical condition. It is a general rule that officers of special and limited jurisdiction cannot sit in review of their own orders, or-vacate or annul them. (People ex rel. Chase v. Wemple, 144 N. Y. 478; Osterhoudt v. Rigney, 98 id. 222.)

It may he, however, that the commissioners could have reopened the case, but no such action was taken by them. The name of Yan -Petten was simply struck off from the list without notice to him, or-without giving him an opportunity to show his' physical fitness for the office. By the action of the commissioners the relator has been not only deprived of the preference to which he became entitled as the result of the examination had and the placing of his name second on the list of eligibles, but he has, in fact, been deprived of the right of an examination as to his fitness for the office in question, to which he was justly, entitled.

Again, the papers submitted to the court below by the appellants fail to show any proper and legal annulment by the commission in September of its decision that Van Petten was eligible for appointment.: as special agent under the “ Liquor Tax Law.” As above suggested, we think the commission could not vacate its formór action without giving Van Petten a right to be heard in the matter. It could not deprive him of the right of examination.. Before it could'legally determine in September that he was physically unfit for the office in question, it was compelled to give him a physical examination.

But if we are in error in this view, it was at least necessary for the members of the commission, before they could, annul their former action, to meet as a body and' td determine that the relator was physically ineligible to the office in question. The papers presented to the court below fail to show any stich action on their part. It is true that Mr. Lyman, State Commissioner of Excise, and Mr. Angle, secretary of the Civil. Service Commission, made,affidavits that Van Petten was physically disqualified from holding the office of special agent -under the “ Liquor Tax Law.” It was not shown, however, that the commission as a body ever' met and ■determined the question as to his physical eligibility. As far as the ■evidence shows, the commission, having met in July and placed the name of Van Petten on the list, afterwards, without notice, without an examination, without giving him an opportunity to be heard, and without any legal action on their own part to vacate their former •determination, arbitrarily removed his name from among those ■eligible to appointment to the office in question.

We are of the opinion that a peremptory writ of mandamus was properly issued. On the undisputed facts, the act of the appellants in removing the name of relator from the list of eligibles was unauthorized ; also, the writ was properly directed to- the' Civil Service Commission. It examined the relator and placed his name on the list of those eligible to appointment, and • afterwards unlawfully removed his name therefrom.

The order should be affirmed, with costs and disbursements;

Parker, P. J., Herrick and Merwin, JJ., concurred; Landon, J., concurred in result and in so much of the opinion as supports the order appealed from.

Order affirmed, with ten dollars costs and disbursements.  