
    The People ex rel. Leo Keisler, Relator, v. Henry Moscowitz, Darwin R. James and Alexander Keogh, Constituting the Municipal Civil Service Commission, Respondents.
    (Supreme Court, New York Special Term,
    November, 1914.)
    Civil service — Power of commission of New York to pass on fitness of candidates — removal of name from eligible list not arbitrary — when motion for writ of mandamus denied.
    The power of the civil service commission of the city of New York to pass upon the fitness of candidates includes fitness of character as well as mental efficiency.
    After relator had passed a civil service examination and after his name had been placed on the eligible list for the position of court attendant it was stricken therefrom by order of the civil service commission for reasons which developed from an examination into his character. While the civil service commission gave no special reasons for their action their decision was greatly influenced by questionable business transactions between relator and one of his associates which resulted in a law suit and by stipulation ended in a judgment for money had and received which was never paid and which relator included in his schedule in bankruptcy. Held, that the judgment was not binding on the civil service commission to the extent of precluding them from examining into the evidence produced, the relator having admitted that the judgment was not on the merits.
    That the removal of relator’s name from the eligible list was not arbitrary and that his motion for a peremptory writ of mandamus to restore his name to said list should be denied.
    Motion for a peremptory writ of mandamus.
    John T. Loew, for relator.
    Frank L. Polk, corporation counsel (Henry J. Shields, of counsel), for respondents.
   Gavegan, J.

Motion for a peremptory writ of mandamus directing respondents, constituting the municipal civil service commission of the city of New York, to restore relator’s name to the eligible list for the position of court attendant. Relator took part in and passed the examination held by respondents and was placed on the eligible list. Thereafter respondents examined into the character of relator and after such examination removed his name from said eligible list. Article V, section 9, of the State Constitution, provides in part: “Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, shall be according to merit and fitness to be ascertained, so far as practicable, by examinations.” In pursuance of this section of the Constitution the Civil Service Law was enacted, and it provided, among other things, that the civil service -commission should have the power to refuse to certify applicants who lack certain qualifications or who have been guilty of infamous or disgraceful conduct, or who have practiced any fraud in securing their eligibility or appointment. Pursuant to' these provisions the respondents examined into the relator’s character and for reasons which developed from said examination ordered that his name be stricken from the eligible list. Subsequently at his request a rehearing was given the relator, but without changing the respondents’ decision.- While respondents gave no special reasons for removing relator’s name from the eligible list it is apparent that questionable business transactions between the relator and one of his associates greatly influenced the respondents in their decision. These transactions resulted in a suit against the relator, at the trial of which counsel for both sides stipulated that a simple judgment as for money had and received be entered against relator. Said judgment was never paid and has been included by relator in the schedule accompanying his petition in bankruptcy. I do not think the judgment in the action in the Supreme Court is binding on the respondents to the extent of precluding them from examining into the evidence which was adduced. In Desbecker v. Cauffman, 169 N. Y. 547, depositions in supplementary proceeding's were held to be properly admitted on a subsequent trial against the parties making the depositions either as admissions or as affecting their credibility. I am of the opinion that in the hearing before the respondents the same principles are applicable and that any testimony adduced at the trial of the action in the Supreme Court should be admissible in order to determine the character of the relator as well as his veracity and credibility. Moreover, relator in his examination before the respondents admitted that the judgment in the Supreme Court was not on the merits. Bespondents’ power to pass upon the fitness of candidates includes fitness of character as well as mental efficiency. They are the sole judges in the matter, and the court will not interfere unless their determination is arbitrary, any more than it would interfere with respondents’ determination on the question of relator’s mental and physical qualifications after an examination. I do not consider that respondents’ action was arbitrary.

Motion denied.  