70 N.Y.S. 845 | N.Y. App. Div. | 1901
The appellant, a police captain of the city óf New York, applied for pi’omotion to the position of inspector in the police department and, with two other police captains, entered into a. competitive examination for that position. Upon his police record for meritorious services he received eighty-five per cent ;, upon his mental examination lie received sixty-two and seventy-five one-hundredths per cent ,; but he failed to pass the physical examination,, and thus, under the rules of the civil service board, lie received a rating of “ zero,” and was not eligible to promotion. He alleges that he is a veteran of the Civil war and as such is entitled to preference ; that at the time of the physical examination' he Was in every respect physically competent to perform the duties of such position, and neither his age nor any physical disability whatsoever rendered him incompetent to perform the same, and that it. thereupon became the duty of Augustus H. Brown, the medical and physical examiner, to find and report to that effect to the municipal civil service commissioners, and so to find and report that he was duly physically qualified for promotion to said position ; but that the said Augustos II. Brown, notwithstanding the premises and his duty thereupon so as aforesaid to find and report, did not so find and report, but, oh the contrary, arbitrarily, without any evidence thereto, and contrary to the evidence and to all the facts existing and observed by him, and not in good faith, found and reported that the. petitioner was not physically competent to perform the duties of the said position of inspector of police, and so was not physically qualified for promotion to such position; and that solely in consequence thereof the said municipal civil service commissioners did not find the petitioner to be duly physically qualified for the position of inspector of police, but, on. the contrary,'’ found that he was disqualified for said position, and omitted and refused to direct the placing of liis name upon the eligible..list.
In answer to this application it appeared that three captains of police submitted to the examination for the position of inspector; that - they were physically examined by the medical examiner, who reported in regard to the petitioner that, on account of his age and by reason of his physical disability, he was incompetent to perform the duties of the position applied. for; that subsequently, on the application of the petitioner, the civil service commission ordered the medical examiner to re-examine him; that such re-examination took place on March 28, 1900, which resulted in the petitioner’s rejection on account of physical disability.; that by rule 23 of the civil service rules and regulations it is provided that “ no applicant for the position of fireman of policeman who receives on a mental examination an average of less than seventy per cent, and on the physical qualifications less than seventy per cent, shall be placed upon the eligible list. Ro applicant receiving zero in any one subject shall be placed upon the eligible list; ” and that in consequence of the physical examination of the petitioner resulting in zero, he was not eligible to promotion. From the report of the medical examiner it appeared that the petitioner with two other captains submitted himself for examination; that the result was that the petitioner, on account of his physical disability, was found incompetent to perform the duties of the position applied for; that the petitioner appealed and the board directed another examination; that on this re-examination the medical examiner confined himself to the test of the past examination referred to, when competitors for foreman in the fire department were examined; that upon the physical examination he found evidence of senile changes in the petitioner’s heart, diminished vision, and slight thickening of the arteries. It
The fact that the petitioner, being upwards of seventy-one years of age, having a weak heart and thickening of the arteries, and showing signs of senile decay, failed to pass the physical test imposed by the rules for promotion in the department, being undisputed, the question is whether, upon his mere statement that he is competent to perform the duties of the position to which he seeks to be appointed, he is entitled to have this determination of the examiners appointed to conduct the competitive examination reversed. The law requires for promotion a competitive examination. Upon this is based the ’ whole system of appointment and promotion in the civil service of the State, and the duty of conducting such examination is by laiv imposed upon the commissioners and examiners duly appointed for that purpose. There is no law which. requires commissioners or examiners conducting such competitive examinations to abrogate the rules under which such examinations are conducted, in favor of veterans or of any other class of citizens; nor are examiners required
These provisions show a distinct intention to prohibit the appointment to any position in the competitive list except after a competí- • tive examination, and to restrict the appointment to such office to those who have passed such a competitive examination. In the nature of things the commissioners and those acting under their authority in conducting such examination are the persons vested with authority by the statute to determine the result of a competitive examination; and certainly no applicant for an office, who is dissatisfied with the determination of these officers — upon whom- is imposed the duty of determining the relative merits of those submitting themselves for examination •—■ can ask the court to conduct a re-examination and to reverse the action of such examiners. The
The order appealed from should be affirmed, with fifty dollars costs and disbursements.
Patterson, O’Brien, McLaughlin and Hatch, JJ., concurred.
Order affirmed, with fifty dollars costs and disbursements.