(concurring). I am of the opinion that the municipal civil service commission violated the statute in limiting the eligible list for the position of examiner to a single name where there were other qualified candidates. The statement of the president of the municipal civil service commission to the effect that individuals who came to the final orals were not unqualified and that the examiners did not appraise them on a relative basis but were to select the top one or two of the eligibles, is evidence that the eligible list was intentionally restricted to one man.
In part, this plan was executed by written instructions to the panel of examiners conducting the oral examinations to “ fail not less than about one-half the total group of candidates ” who had passed the written examination, and by another order which directed that ratings of “ 60% and 75% ” be allotted to candidates whose technical competence is only very slightly below that of a high grade examiner. As the final passing mark for all three parts of the examination was fixed at seventy-five per cent, the direction to the examiners to rate between sixty per cent and seventy-five per cent candidates only very slightly below that of a high grade examiner undoubtedly might have excluded some whose technical competence was in every way satisfactory.
It may well be that the president of the municipal civil service commission in good faith believed that it was in the public interest to confine the eligible list to a single name though several may have been qualified. However, such a limitation is violative of the *444provisions of the statute. Section 871 of the Education Law provides that those who qualify in the examination for the position of examiner, board of education, are to be placed upon an eligible list from which appointments may be made for a period of four years from the date of its promulgation. Candidates who are in every respect qualified may not be barred and thus deprived of opportunities of appointment during the four years the list is to remain in force.
Moreover, the plan removes from the appointing agency, that is, the board of education, the power of selection of one of three persons who are willing to accept, and are graded highest on the eligible list. (Rules for the Classified Civil Service, rule VIII, subds. 1 and 2; People ex rel. Balcom v. Mosher, 163 N. Y. 32.) Under the law, it is the function of the municipal civil service commission to prepare an eligible list of all those found to be qualified upon appropriate, open competitive examinations. Once that list is established, the commission’s remaining duty consists in certifying the three highest names on the list when a vacancy occurs. The power of appointment and selection from amongst those certified is vested by law exclusively in the department or agency in which the vacancy exists — in this case, the board of education of the city of New York. An eligible list intentionally limited to one name would operate as a transfer of the power of appointment from the board of education to the municipal civil service commission.
As to the merits of the respective candidates, it has long been the rule that “ the court can neither conduct nor supervise civil service examinations ” (People ex rel. Caridi v. Creelman, 150 App. Div. 746, 749) and the acts of the civil service commissioners may only be questioned in court when some provision of the Constitution or of a statute which vests no discretion in the commissioners has been violated. (People ex rel. Braisted v. McCooey, 100 App. Div. 240; Matter of Sheridan v. Kern, 255 id. 57, 59.) The standards used in rating the competitors must be objective, and reviewable by other examiners of equal ability and experience. If the examination is fairly conducted and in accordance with law, there may be no judicial interference. Only when the discretion of the commissioners is illegally and unreasonably exercised, may a person aggrieved appeal for redress to the courts. (Matter of Sloat v. Board of Examiners, 274 N. Y. 367; Matter of Fink v. Finegan, 270 id. 356.)
The technical-oral examination was carefully prepared. Part I comprised a test which consisted of having candidates witness *445a demonstration examination in which an employee of the commission took the role of a candidate for a license in the school system and another employee acted as an examiner. The candidate was required to rate the demonstration examiner and demonstration subject upon the quality of their performance and then to support the ratings given. Part II of the technical-oral examination consisted of two subdivisions. The first was intended to enable examiners to observe the candidates in the performance of the actual work of an examiner. The second portion of part II consisted of direct questioning of the candidates upon important educational problems. Generally, each part of the technical-oral examination was designed to rate the candidates upon the following five qualities: (1) Judgment; (2) clearness and quickness of comprehension; (3) appearance; (4) manner; (5) speech. Tests such as these devised to measure the factors enumerated in a candidate for the position of examiner for the board of education of the city of New York would be objective, and of practical value in determining merit and fitness. These examinations were reviewable to the extent that all the questions and answers were recorded.
I agree with the view expressed in the opinion of Mr. Justice Callahan that there should be no inquiries made by the examiners into the political and quasi-political ideologies of the candidates. If such a practice were indulged in, it would clearly violate the statute. (Civil Service Law, § 25; Rules for the Classified Civil Service, rule II, subds. 3, 4 and 5.) Such discussion should be shunned, even if initiated and developed out of the answers given by the candidates themselves. It is to be noted that each of the five members of the examining panel in charge of part II of the technical-oral examination has affirmed under oath that it was not the purpose of the examination to ascertain the political, social or economic views of any candidate and that any such views, if expressed, were not discussed or considered by the members of the panel among themselves or with any member or representative of the municipal civil service commission; that all questions were prepared solely to determine fitness for the position and “ were calculated to have a practical bearing upon the candidate’s professional competence to discharge the duties of an Examiner.”
Many of the allegations contained in the petition of appellants are unsupported by facts. To discuss them all would serve no useful purpose. Joseph Jablonower, the respondent, who was the only successful candidate, taught in the New York city schools until 1919. When he resigned from his position as a high school teacher in that year, he received the highest ratings. Since that *446time and until his appointment as examiner, he has been continuously connected with the staff of an established private school as a teacher and in a supervisory capacity. Under the law, the court may not substitute its judgment as to the qualifications of the respective candidates for that of the examiners of the civil service commission. Upon a scrutiny of the record I cannot say that their judgment in finding respondent Jablonower fully qualified was not correct. However, the error committed by the municipal civil service commission in illegally limiting the eligible list to one name operated to the obvious prejudice of other well-qualified candidates who were thus deprived of a place thereon and of the right to be certified for appointment for existing and future vacancies.
For the foregoing reasons I concur in the opinion of Mr. Justice Callahan to the extent of reversing the order and directing the municipal civil service commission to re-examine orally for technical competence and personality the petitioners and all others who passed the written examinations, as well as Jablonower, and thereafter to promulgate an eligible list containing the names of all qualified candidates in their regular order.
Order unanimously modified and the petition of the petitioners granted to the extent of directing the cancellation of the appointment of the respondent Jablonower; and the respondent municipal civil service commission is directed to conduct a technical-oral test in accordance with law, which test shall be open to all candidates who successfully passed the written examinations. Settle order on notice.