(concurring). Appeal from an order of the Supreme Court, entered in Albany county clerk’s office November 26, 1940, granting petitioner’s application, in a proceeding under article 78 of the Civil Practice Act, for an order directing appellants to indorse respondent’s Austrian medical license, pursuant to section 1259 of the Education Law.
Respondent, the petitioner herein, born in Czechoslovakia in 1874, graduated from a gymnasium after nine years’ attendance, *327following which he attended for five years the University of Vienna Medical School, from which he graduated in 1899, receiving in the same year his license to practice, in Austria, medicine, surgery, ophthalmology and gynecology. He was in active practice in Vienna from 1905 to 1938, during which period he published about two hundred scientific papers and books, listed through some twenty pages of the printed record, edited several encyclopedia on medicine and was accorded membership in leading neurological societies of the world, including the American Neurological Society, to which he was elected as an honorary member in 1932. From 1919 to 1938 he was director of (not merely “ connected with ”) the Neurological Institute at the University of Vienna where, as head of the best known and most widely attended European clinic and laboratory for post-graduate instruction in neurology, he conducted courses of instruction for students who flocked to him from every country of Europe, besides hundreds of Americans.
As a refugee from Austria he entered this country in June, 1938, and some three months later he filed his declaration of intention to become an American citizen. In January, 1939, he was appointed Clinical Professor of Neurology at Columbia University and became Research Neuropathologist at the Montefiore Hospital, where his laboratory work was supported by grants from the Rockefeller and the Friedsam Foundations. In August, 1939, the State Education Department advised him that he had passed, in the preceding June, his examination in English for foreigners.
To enable him to practice his profession in this State three alternatives were open to respondent under the provisions of the Education Law: (a) under subdivision 3 of section 51, by obtaining from the Board of Regents of the University of the State of New York an indorsement of his foreign license “ upon satisfactory evidence that the requirements for the issuance of such license were substantially the equivalent of the requirements in force in this State when such license was issued, and that the applicant has been in the lawful and reputable practice of his profession for a period of not less than five years prior to his making application for such endorsement; ” (b) under subdivisions 3 and 4 of section 1256, by taking a licensing examination which is open to an applicant who has “ the preliminary general education required by the rules of the Department,” and who “ has completed not less than four satisfactory courses of at least eight months each in a medical school * * * in a foreign country maintaining a standard not lower than that prescribed for medical schools in this State; ” (c) under section 1259, “ The Commissioner of Education may in his discretion on the approval of the Board of Regents indorse a *328license or diploma of a physician from another State, or country, provided the applicant has met all the preliminary and professional qualifications required for earning a license on examination in this State, has been in reputable practice for a period of ten years, and has reached a position of conceded eminence and authority in his profession.”
On February 28, 1939, respondent addressed to the Board of Regents an informal letter requesting grant of a license without examination and inclosing therewith what he termed his curriculum vitse and a testimonial signed by four doctors. Under date of March 7, 1939, the Regents’ receipt of the application was acknowledged, a formal application blank was inclosed and respondent was advised that he must submit evidence of having declared his intention to become a citizen of the United States and must pass the examination in English prescribed for foreigners. On September 12, 1939, respondent informed the Regents that he had obtained his first citizenship papers on September third of the year before and that he had passed his examination in English for foreigners in June, 1939. Further documents were required of respondent in a letter from the Regents bearing date September 20, 1939, an application fee of twenty-five dollars was exacted (apparently under the mistaken impression that respondent was applying under section 1256) and the letter closed with the ominous warning that “ I cannot hold out any hope that the application for indorsement will be granted.” Further supporting documents having been filed with the Regents from time to time in the interval, an Associate Commissioner of Education advised respondent, under date of November 20, 1939: “ It is my personal opinion that it would be unwise for you to endeavor to secure the indorsement of your Austrian medical license on the ground of special eminence and authority because of the settled policy of the Board of Regents not to approve such applications except in very unusual and extraordinary cases. In your case, while your pre-eminence in the field of medicine might be readily established, there are many others in the profession who could claim equal consideration and I am certain that the Regents would not be inclined to act favorably in your case.”
Electing, however, to proceed under section 1259, respondent, on January 23, 1940, submitted to the then Commissioner of Education and to the Board of Regents his formal petition for an indorsement of his Austrian medical license upon the following grounds: (a) That he had theretofore met all the preliminary and professional qualifications required for earning a license on examination in the State of New York; (b) that he had been in *329reputable practice for a period of over thirty years; and (c) that he had reached a position of conceded eminence and authority in his profession, particularly in the field of neurology, and that he had done a great deal to further advance the practice of the science of medicine. Such petition was accompanied by various supporting documents required by the Regents, including testimonials from six eminent doctors, supplied in compliance with the Regents’ suggestion that “ you, submit as many letters and certificates as you can obtain from outstanding physicians in this country indicating their belief, if such is the case, that you should be granted a license to practice medicine upon the basis mentioned.” On March 14, 1940, the Regents’ Committee on Licenses met in New York city and conducted a hearing at which respondent and his counsel appeared. In a letter dated five days later petitioner’s counsel was advised that “ at the recent meeting of the Board of Regents the application of Dr. Otto Marburg, for the indorsement of his Austrian medical license on the ground of eminence and authority in his profession, was denied.” Thus no question was made but that respondent has met “ all the preliminary and professional qualifications required for earning a license on examination in this State,” or that he “ has been in reputable practice for a period of ten years.”
Acting on a suggestion from one of the Regents, respondent’s counsel, on April 9, 1940, filed with the Board a supplemental petition which, with the original petition and the exhibits accompanying that document, was presented to the Regents on April 19, 1940, when respondent’s application for indorsement of his Austrian medical diploma was again denied, the vote of the Regents erroneously reciting that respondent’s application had been made under section 51. In view of such mistake on the part of the Regents, respondent, directing attention to the fact that he was proceeding not under section 51, but under section 1259, of the Education Law, renewed his application to the Board at a meeting thereof held May 17, 1940, when, again making no question but that respondent had met all of the requisite preliminary and professional qualifications or that he had been for ten years in reputable practice, the Regents voted that respondent’s petition and supplemental petition “ under the provisions of section 1259 of the Education Law, on the ground of his having reached a position of conceded eminence and authority in his profession, be denied.” Within the prescribed statutory time thereafter this proceeding was instituted, resulting in the order now before us for review.
It is conceded that, as Justice Heffernan observes, the single question presented is whether appellants’ denial of respondent’s *330application was arbitrary, unfair or capricious. For the reasons hereinafter set forth it was all three. Arbitrary, because done without adequate determining principle; unfair, because of appellants’ obvious determination from the first to close the door against respondent; capricious, because simply a manifestation of appellants’ whim. Respondent’s vain attempts to obtain the privilege of practicing here were marked not alone by the brusque intimation at the outset that he would probably fail. For the petition alleges, and the answer does not deny, that later occurred a discreditable but abortive effort to entrap respondent into treating a stool-pigeon who had been detailed to seek his ministrations, when compliance on his part would have involved him in the commission of a crime. (Education Law, § 1263.) To similar tactics Mr. Justice Holmes has applied the epithet “ dirty business.” (Olmstead v. United States, 277 U. S. 438, 470.)
Numerous reasons are assigned to justify the treatment accorded respondent by appellants, among them:
1. That appellants thoroughly investigated respondent’s record and fully considered his application on the merits.— It is difficult to reconcile a claim of thorough investigation with a denial of the application as having been made under section 51, whereas respondent was proceeding under section 1259, or a consideration on the merits in view of the prejudice obviously held against respondent from the beginning.
2. That appellants have made a non-reviewable choice from opposing inferences adduced from conflicting evidence.— On the contrary, the evidence adduced before appellants all points in the direction of respondent’s conspicuous fitness and affords no basis for conflicting inferences which might be drawn by reasonable men.
3. That, save in the four instances where they have made an exception, since 1918, to their otherwise inexorable rule, the Regents have properly established for the State a policy of requiring every foreigner to submit to examination.— But “ a State has no public policy except that which is found in its Constitution and laws.” (Bloom v. Jewish Board of Guardians, 261 App. Div. 143, 148.) “ Laws are made by the law-making power and not by administrative officers acting solely on their own ideas of sound public policy, however excellent such ideas may be.” (Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157, 162.) Very likely few experienced lawyers, and still fewer judges whose official tenure has removed them for any considerable length of time from the practice of law, would be expected to pass a present-day bar examination paper which, however, a tyro fresh from law school could probably pass with distinction.
*3314. That respondent’s prolific authorship on medical treatises, far from establishing his “ position of conceded eminence and authority in his profession,” stamps him as one whose efficiency in his field is open to suspicion, and affords a fair inference that his entire professional life has been passed in cloistered security of teaching institutions, wherefore he is not entitled to have his name inscribed upon the permanent rolls of the medical profession.— Within such cynical appraisal must we fist such classic law-writers as Greenleaf, Wigmore, Cooley, Dillon, Beale, Jones and Williston? “ Each in his separate star ” was recognized as having reached a “ position of conceded eminence and authority in his profession.” Professor Pomeroy has been ranked by Judge Vann with Justice Story. (Elterman v. Hyman, 192 N. Y. 113, 122.) Of an author to whom the profession in this State is indebted for standard works on practice, which have become the vade mecum of every lawyer, it has been observed by Mr. Justice Jenks : “ The research, learning and logic of Austin Abbott make his conclusions valuable to any court.” (Fox v. Cowperthwait, 60 App. Div. 528, 530.) Does Mr. Justice Stone rest under any stigma because, prior to his appointment to the Supreme Court, he was dean of Columbia Law School? Many recent accessions to the Federal judiciary include men who have devoted years to the teaching of law. An outstanding teacher in a medical school is no more withdrawn from human contacts than a judge of an appellate court.
5. That the attendance of countless students, including innumerable Americans, upon respondent’s courses at the Vienna university signifies nothing. Emerson, however, declared that if a man could make a better mousetrap than any one else, then, though he should establish himself in the midst of a forest, the world would beat a path to his door.
6. That the impressive array of testimonials from distinguished physicians in tins country, certifying to respondent’s standing, must have been perfunctorily written, it even being suggested that they are stereotyped in form and “ are so discreetly phrased that they convey little, if any, information beyond the good wishes of the writers.” — So to evaluate them is simply to close one’s eyes to the unqualified assurances given by men in far better position than a group, composed of those who in the medical world are laymen, to appraise accurately respondent’s claim to a position of eminence and authority in his profession:
Dr. Bernard Sachs: “ I had occasion to see Dr. Marburg at work in his Institute in Vienna, and can state very definitely that everyone regarded him as the leading neuropathologist of Europe. * * * He has a larger number of pupils, now eminent in this *332country, than any other one person in any country. I am fully persuaded that he is a distinct and great asset to the Neurological Profession in this country. * * * If any man was deserving of an indorsement of his license to practice, Doctor Marburg surely is. * * * ”
Dr. Foster Kennedy: “ His name has been one of the most important in European Medicine throughout most of my professional life. I have constantly been educated by his writings, even in my student days. * * * I know of no greater figure in the Medical World, and hope the authorities of the Board of Education can indorse medical license for him.”
Dr. Joshua Rosett: “ Almost every neurologist the world over, of the present generation, studied under him at one time or another, and certainly every neurologist is acquainted with his work.”
Dr. Henry Alsop Riley: “I have known Dr. Marburg for over ten ■years personally and for my entire professional life by reputation. * * * As Director of the Institute he was the head of the best known and most widely attended clinic and laboratory for postgraduate instruction in neurology in Europe. Hundreds of those in our specialty in this country have been his students. In his professional activity he has combined a thorough, complete and searching knowledge of neurology, neuroanatomy, neuropathology and the therapy of neurological disorders. He is one of the most eminent scientists who have been added to our academic circles.” Dr. E. D. Friedman: “ Dr. Marburg was my teacher in Vienna over thirty years ago and has been for many years an outstanding neuroanatomist, neuropathologist and clinician. He was the dean of the neurologists of Austria, presiding officer of their local and national societies, and has made a long series of splendid contributions to the field of neurology.”
Dr. Tracy Jackson Putnam: “ Professor Marburg is a neurologist of international reputation. * * * His laboratory in Vienna was a well-known training center, where scores of American neurologists have studied. * * * He is famous also as a writer on neurological subjects, and has been asked to contribute to all of the Handbooks of neurology in the German language published during the last generation. I have just seen his latest production, a treatise on the optic tract and its connections with the brain, which is in every way remarkable.”
Dr. Willard C. Rappleye: “ Dr. Otto Marburg was an eminent neuropathologist in Vienna and one of the outstanding figures in his field in the world. We have been very glad to have him associated with this School since his arrival in this country. * * * It is my own opinion * * * that Dr. Marburg is one of the *333few men whom I have personally known in his situation who might be licensed on the basis of his eminence in his special field of medicine.”
Besides the foregoing, intimate personal letters from the late Dr. Harvey Cushing, addressed to respondent in Vienna, attest the high regard in which he held respondent’s professional attainments.
7. That this court may not, upon the record before it, disturb appellants’ determination. — Yet error, as matter of law, may be predicated on an abuse of discretion so flagrant as to shock one’s sense of justice.
“ An abuse of discretion is an abuse of power, and is therefore, an error of law.” (Cohen on Powers of the Court of Appeals, § 135.)
In the words of the present Chief Judge of the Court of Appeals: “ Administrative boards, though acting in a quasi-judicial capacity, may employ a yardstick devised by the use of reason and fairness to meet their particular problems. In the review of their determinations, the courts must apply a similar measure.” (People ex rel. Hirschberg v. Bd. of Supervisors, 251 N. Y. 156, 161.)
The limits of reasonable discretion are transgressed where refusal is based upon a ground which is not supported by any evidence, and arbitrary refusal of a license in such a case to a fit and proper applicant is a wrong to him. (Matter of Small v. Moss, 277 N. Y. 501, 507.) Even the widest discretion cannot justify a determination which is without any reasonable foundation in fact. (Matter of Small v. Moss, 279 N. Y. 288, 294.)
“ In the absence of a clear expression by the Legislature to the contrary, the courts may review the exercise of a discretionary power vested in an administrative officer or body to determine whether the case discloses circumstances which ‘ leave no possible scope for the reasonable exercise of discretion in such manner.’ ” (Matter of Schwab v. McElligott, 282 N. Y. 182, 186.)
Neither of two recent cases which passed through this court precludes us from correcting the injustice worked by appellants’ determination. In Matter of Levi v. Regents of University of State (256 App. Div. 444; affd., 281 N. Y. 627) the applicant proceeded under section 51. So, too, in Matter of Bailey v. Mangan (261 App. Div. 64), where, it is true, application was made also under section 1259, with whose prescribed prehminary qualifications, however, petitioner had not complied.
The order should be affirmed, with fifty dollars costs and disbursements to respondent.
t Hill, P. J., Bliss and Foster, JJ., concur. • ■ ' ,