Miller, J. :
• The relator was, on December 31,1902,' appointed to the position of complaint clerk of the police department of the city of New *771York, which position was at the time, and lias since remained-, in the exempt class of the classified service, according to the classification of the- municipal civil service commission. He was removed from - his position by the defendant McAdoo without a compliance with section.1543 of the charter (Laws of 1901, chap. 466), which, so far as material, provides: “ But no regular clerk or head of a bureau, or person holding a position in the classified municipal civil service subject to competitive examination, shall be removed Until he has been allowed an opportunity of making an explanationand in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department or,board or borough president, and a copy filed with the municipal civil service.” Hpon a former appeal in this case "it was held that mandamus and not quo "warranto was the proper remedy.' (People ex rel. Corkhill v. McAdoo, 98 A.D. 312" court="N.Y. App. Div." date_filed="1904-11-15" href="https://app.midpage.ai/document/people-ex-relcorkhill-v-mcadoo-5195544?utm_source=webapp" opinion_id="5195544">98 App. Div. 312.) . The issues raised by the return to the- alternative writ have now been tried with the result that the relator has a final order and judgment directing that a peremptory writ issue to compel his reinstatement. The. only question that appears-to -have been litigated upon the trial was whether the position .of-the relator was confidential, or that of a regular clerk, and the; , test applied apparently by the acquiescence of all parties was whether the duties' of the position were confidential. There does not seem, to-have been any serious dispute, as to the nature of these duties, but the question was. nevertheless submitted to-the jury, which found that the relator’s dirties were not confidential. "■ :
, In order to . decide this case it is necessary to construe -the • provision of the statute quoted supra, which is -a re-enactment -of section 28 of chapter 335 of the -Laws of 1873, section 48 of chapter 410 -of . the .Laws of 1882,. and section 1543- of chapter 378; of the:Laws of 1897, with .the .addition of the-words “or person holding a position in the classified municipal civil service subject to competitive examination.” ' The meaning of the words “ regular clerk ” has . been passed upon .in People ex rel. Sims v. Fire Comrs. (73 N.Y. 437" court="NY" date_filed="1878-04-23" href="https://app.midpage.ai/document/people-ex-rel-sims-v-board-of-fire-commissioners-3613652?utm_source=webapp" opinion_id="3613652">73 N. Y. 437) and People ex rel. Emerick v. Board of Fire Comrs. (86 id. 149), which held that the;- words-were used-in their popular sense, and included only such positions as-did not inquire any other qualification -than the -ability to perform purely clerical work. There was no stich thing as a classified *772civil service at. the time of the act in 1873, and the addition of the words' quoted last above is doubtless accounted for by the classifications provided' for by the Civil Service Law, now chapter 370 of the Laws of 1899, and I think the expression added includes the former. The. Constitution provides (Art. 5, .§9) that merit and'.fitness for positions in the civil service shall be ascertained, “ so- far as practicable, by examinations, which, so far as practicable, shall be competitive.” In harmony with this constitutional provision, section 12 of the Civil Service Law provides for classification in the exempt class of all positions “ for the filling of which competitive or non-competitive examination inay be found to .be not practicable,” and the test prescribed by the Court of Appeals.as. to the practicability of an examination is whether the duties are of a confidential character. (Chittenden v. Wurster, 152 N.Y. 345" court="NY" date_filed="1897-04-20" href="https://app.midpage.ai/document/chittenden-v--wurster-3583013?utm_source=webapp" opinion_id="3583013">152 N. Y. 345.) Ho reason can be suggested for asserting that a competitive examination is not practicable for positions whose duties are purely clerical, and,- as we have seen, those whose duties are more than merely clerical are not “ regular clerks.” Of course the statute must contemplate that all- positions in the civil service will .be subject- to competitive examination unless such examination is impracticable, and it must, therefore, follow that the expression “ person holding a position in the classified municipal civil service subject to competitive examination ” was intended to include every “ regular clerk.” But it is insisted that the classification adopted by the civil service commission is not controlling, and that although the relator obtained his appointment-, without competitive examination, he is still granted jimm unity from removal by this statute in case the court should, hold that the commission erred in classifying the position as 'one for which a competitive examination was not practicable; in other words, that he may be granted immunity from removal from a position by the assertion that he holds it in violation of the Constitution. The Court of Appeals has recently held that the-aet of classification by a civil service commission is a legislative or administrative and not a judicial act, and that it cannot be reviewed by the courts,. and that the only 'control that the courts can ' exercise over such an act is a limited and qualified one to be exercised only by mandamus in cases where the act sought to be controlled is so pal-' pably violative of the law as to present no fair or reasonable ground. *773for difference of opinion among intelligent and conscientious officials. (People ex rel. Schau v. Mc Williams, 185 N.Y. 92" court="NY" date_filed="1906-05-01" href="https://app.midpage.ai/document/people-ex-rel-schau-v--mcwilliams-3604350?utm_source=webapp" opinion_id="3604350">185 N. Y. 92.) It will not be claimed that the classification of the position in question could be controlled by mandamus within the rule stated supra. Even the learned trial court was so much in doubt whether the duties of the position were confidential that although the nature' of such duties appeared without dispute, he submitted the question to the jury. If the classification of' the commissioners cannot be directly attacked, it should be conclusive when called in question collaterally by a person seeking restoration to a position upon tile ground that his appointment to such position was illegal. We do not think the aid of the courts can successfully be invoked for the accomplishment of such purpose.
The judgment and order should'be reversed and the proceedings dismissed.
Hirschberg, P. J., Woodward, Jenks and Hooker, JJ., concurred.
Judgment and order reversed, with costs, and proceedings dismissed, with costs. "