
    In the Matter of the Application of Dr. Gustavo G. E. De Luca, Petitioner, against James Byrne and Others, Being Members of the Board of Regents of the University of the State of New York, Defendants.
    Supreme Court, Special Term, Albany County,
    August 31, 1938.
    
      Albert H. Scipione, for the petitioner.
    
      Ernest E. Cole, for the defendants.
   Schenck, J.

The petitioner seeks an order from the court directing the Regents to indorse his Italian license to practice medicine by virtue of section 51 of the State Education Law.

Prior to this application, petitioner indicated to the Regents that he desired to take a State examination for license to practice medicine in the State of New York. No application for such examination was filed, however, and in November, 1937, this proceeding was commenced. The Regents denied the application “ because the evidence submitted in his case is not satisfyingly sufficient to warrant such indorsement, but that such denial shall be without prejudice to the right of the applicant to continue taking the medical licensing examinations.”

Petitioner maintains that the Board has the power to indorse his Italian medical license without examination and maintains that the Regents unjustly discriminated against him and that its decision is contrary to the Fourteenth Amendment.

The indorsement of petitioner’s license was entirely in the discretion of the Regents and unless the act of the Regents was discriminatory or capricious, this court will not interfere with the exercise of this discretion. Subdivision 3 of section 51 of the Education Law does not impose upon the Regents a mandatory duty and the indorsement is entirely permissive. If, upon the evidence before it, the Regents determined that the applicant fails to possess the essential qualifications required in this State, the Regents may deny such indorsement. This court may not substitute its judgment for that of a body which has discretionary power and which has passed upon the evidence submitted.

The application is denied, without costs.

Submit order accordingly.  