
    Edward R. Foreman, Resp’t, v. Union and Advertiser Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    Municipal Corporation—Civil service law.
    The mayor may require an application for leave to take a civil service , examination to be verified, and such oath is not extrajudicial.
    Appeal from a judgment entered- on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.
    
      Nathaniel Foote, for app’lt; Eugene Van Voorhis, for resp’t.
   Lewis, J.

The defendant is a corporation, and is the publisher-of a newspaper in the city of Rochester, known as the Union and Advertiser. This action was brought to recover damages for an alleged libelous article published by the defendant of and con-. cerning the plaintiff. The mayor o£ the city of Rochester, after the passage of chapter 354, Laws 1883, entitled “ An act to regulate and improve the civil service of the state of New. York,” as amended by chapter 410, Laws 1884, appointed a board of examiners of applicants for admission into the civil service of the city, and he promulgated rules and regulations for the government of such examinations, with a View of ascertaining the fitness and qualifications of applicants for admission into such service. The plaintiff was an applicant for the position of investigating clerk in the city attorney’s department of said city. The position was one coming within the civil service rules, and, with the view of being permitted to take such examination, the plaintiff made a written application to the said board in the form and manner prescribed in such cases, which he duly verified before a commissioner of deeds of said city. He, among other things, stated in the application that he resided in the city of Rochester, and had resided in that city continuously for over four years, and that he had not been arrested upon a criminal charge. He was examined by the board, "and was duly certified to be qualified to enter the service, and he was thereafter appointed to the position of investigating clerk. A reporter upon the defendant’s paper, after making a careful examination as to the truthfulness of the statements in plaintiff’s application, and having become satisfied that they were untrue, prepared the article in question, and it was published by the defendant. The article was headed : “ Foreman in Lima—An Unenviable Record in his Native Town—Affidavits by the Town Officials—The Perjury before the Civil-Service Examiners—Still Retained in the City’s Law Department although not Eligible.” The article goes on to give a copy of the plaintiff’s verified application, and also what purported to be copies of a number of affidavits made by residents of the village of Lima, tending to show that the plaintiff had been a resident of that village during the most of the year prior to his making the application, and then charges that statements in the applicition were false, and that “ the grand jury can'scarcely avoid giving the matter its consideration ; ” and adds: “Affidavits establishing a second falsehood, in the sworn application to the civil-service examiners, may be produced, if necessary, as readily as those given above.” This action was thereupon commenced. It was alleged in the complaint that the defendant intended by the article to charge the plaintiff with the crime of perjury, fraud, and other crimes and offenses in his application. The defendant interposed an answer setting up the truth of the article in justification of the publication, and alleging that it was not true that the plaintiff had resided in the city of Rochester continually for over four years, and that it was not true that he had not been arrested upon a criminal charge, and charged that he had theretofore been arrested upon a criminal charge, tried, and convicted, and that the allegations in the application to the contrary were false, and known to the plaintiff to be false at the time they were made; and for a further defense, and in mitigation of any damages, it was alleged that the publication was made in-good faith, and without malice, and in the public interest, and in the belief on the part of the defendant and publishers that the same was true, and that they had reasonable and probable cause for believing the same to be true. There was evidence tending to show that the-application of the plaintiff in the respects mentioned was untrue, and known to him to be false at the time it was made. The trial court held that there was no provision in the civil-service-law authorizing the mayor to make rules requiring that such application should be verified; that the plaintiff’s oath was therefore extrajudicial; and that hence the charge of perjury could not be predicated upon it; and that the only question for the consideration of the jury was one of damages. The correctness of this ruling was duly challenged by a proper exception, and presents the important question in the case. The article, in effect, charged the plaintiff with having committed the crime of perjury in verifying the application. If neither the mayor nor the board of examiners had the power to require that the application should be verified, then the oath was extrajudicial, and a charge of perjury could not be predicated upon it. By § 8, chap. 410, Laws 1884, it is provided that the mayor of each city in the state is authorized and directed to prescribe such regulatious for the admission of persons into the civil, service of such city as may best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge, and ability for the branch of the service into which they seek to enter; and for this purpose he shall, from time to time, employ suitable persons to conduct such inquiries and examinations, and shall prescribe their duties and establish regulations for the conduct of such persons as shall receive appointment in the said service. After the passage of the acts referred to, the mayor of the city of Eochester prescribed certain rules and regulations for the admission of persons in the public service of the city. Among other things, the regulations required that the application for a position like the one sought for by the plaintiff should be in writing, and should be duly verified by the oath of the applicant, addressed to the examining board. As stated, the act does not, in terms, provide that the civil service board or the mayor may examine the applicants upon oath ; neither does it, in terms empower the mayor to make it a condition of the examination that the written application papers shall be sworn to. It does however, require the mayor of each city to prescribe proper rules and regulations for the government of such examination, with a view of promoting the efficiency of the civil service, and ascertaining the fitness of such candidates with respect to character, knowledge, and ability for the service which they seek to enter. It is the contention of the appellant that the power so conferred upon the mayor was sufficient to authorize him to require that such applications be made under oath. It is important that the examining board should be informed as to the moral character, as well as the intellectual qualifications, of candidates for positions in the civil service of their cities. .It would probably aid them, in arriving at the facts as to the character of the applicants, if they could be subjected to the ordeal of a verification of their written applications by their oaths. Section 95 of the Penal Code provide that:

“ A person, who swears * * * that any * * * declaration, * * * certificate, affidavit, or other writing by him subscribed is true * * * upon any hearing or inquiry, or on any occasion where an oath is required by law, or is necessary * * * for the ends of public justice * * * and who "x" * * on such hearing, inquiry or other occasion willfully and knowingly testifies, declares, deposes or certifies falsely in any material matter, or states in his testimony; declaration, deposition, affidavit or certificate ,any material matter to be true which he knows to be false, is guilty of perjury.”

If this section does not reach the case, does section 843 of the Code of Civil Procedure, which is as follows:

“ Where an officer, person, board or committee has been heretofore or is hereafter authorized by law to take or hear testimony, or to hear or receive an affidavit or to take a deposition in relation to a matter concerning which he or it has a duty to perform, the officer or person, or a member of the board or committee may administer an oath for that purpose. Where an officer, person, board, or committee to whom or- to which application is made to do an act in an official capacity requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose. ”

The examiners were a board to whom the plaintiff made application to do an official act. It was necessary that they should have information as to plaintiff’s character to enable them to decide upon the propriety of certifying him to be eligible to enter the civil service of the city. The rules and regulations promulgated by the mayor required the application tobe made under oath. We assume that, if the plaintiff had presented an unverified application, he would not have been permitted by the board to be examined. He presented a sworn application, which the board received and acted upon. We incline to the opinion that the board of examiners were empowered by the latter clause of the section last quoted to require, as a condition of the plaintiff’s taking the examination, that he should verify his application under oath, and, if so, the oath was not extrajudicial. The evidence tending to prove the truth of the allegations of the answer should have been submitted to the jury.

The plaintiff’s verdict was for $1,750. The defendant’s counsel contends that it was, in any event, excessive, and should be set aside for that reason. It was, in view of all the facts, a large verdict, but not so excessive as to justify us in setting it aside for that reason. We put our decision upon the ground of the error in excluding from the consideration of the jury the defense of justification.

The judgment and order appealed from should be reversed^ and a new trial granted, with costs to abide the event.

All concur.  