This is an appeal by the Commissioners of the Department of Civil Service from an order of peremptory mandamus directing the Commissioners to approve the application of the petitioner to be permitted to take the examination for the position of game protector in St. Lawrence county, a position in the competitive civil service class. (Conservation Law, § 165.) Under section 14 of the Civil Service Law, the Commissioners have established as a preliminary requirement that candidates for game protector must be not less than five feet, nine inches in height. The petitioner is five feet, seven and three-fourths inches in height. The statement of that fact in his application was the sole ground upon which the Commissioners denied him permission to take the examination. He is a veteran of the World war; he enlisted July 8, 1917, and went over seas with Company B of the Twenty-seventh Division. After active service, during which he was gassed, he was honorably discharged and now receives a pension of sixty dollars a month. It is alleged in his petition that he “is thirty-five years of age, weighs 161 pounds and is five feet 7f inches in *183height, and the heart condition which petitioner received in the war does not render him incompetent to perform the duties of the office of game protector.” Through service in the army and the disability as recited, petitioner has a preference under the Civil Service Law. (§ 21.) Such an applicant “ shall not be disqualified from holding any position in the civil service on account of his age or by reason of any physical disability provided such age or disability does not render him incompetent to perform the duties of the position applied for.” The petitioner argues that the fact that he is one and one-quarter inches under the standard of height fixed for this position by the Commissioners is a “ physical disability ” and he may not be excluded by reason thereof from taking the examination or receiving the appointment if otherwise qualified. A veteran is not disqualified because he is of a greater age than prescribed by the Commissioners as a requirement. (Matter of Loud v. Ordway, 219 N. Y. 451). Petitioner’s lack of height is a “ physical disability.” Webster defines “ disability ” inter alia as lack of physical fitness. Petitioner lacks the physical fitness as to height prescribed by the Commissioners. The term “ disability ” is “ merely descriptive of the condition of the person.” (Terrell v. Moupin, 83 S. W. 591, 592; 26 Ky. Law Rep. 1203.)
The argument that a veteran’s preference is operative only after a place upon the list has been, earned through a competitive examination is without weight if the veteran has been prevented by the wrongful act of the Commission from taking the examination through which he might be placed on the list. (Matter of Loud v. Ordway, supra.)
The order should be affirmed, with costs.
Rhodes, J., concurs.
Order reversed on the law, with fifty dollars costs and disbursements, and motion denied, with ten dollars costs.