(dissenting). The questions .are not attacked as being irrelevant to the duties of a sergeant in the police department.
The issue is not as to questions calling for answers that are either absolutely right or absolutely wrong as in the case of mathematical or grammatical tests. The connotations of the word “ best ” demonstrate that the questions were in a realm which necessarily allows considerable scope for judgment in determining what is relatively best out of four possible answers. The questions tested judgment, not memory or grammatical or mathematical accuracy. One question that called for a statistical answer was capable of two reasonable interpretations.
In the opinion of the majority, only “ a few ” of the nine (out of ninety) questions .in issue were not capable of one best answer.
An examination of the nine questions in issue and of the final key answers, indicates that different persons may reasonably differ in their judgment as to which of certain of the answers were best. The commission considered protests (which *503it invited), consulted authorities and published the final key answers providing two or more correct answers to nine of the questions and then rated all papers equally in accordance with such objective final key. If errors were made either in the framing of the nine questions or selecting the best or correct answers, they were errors of judgment. Though the court or a majority thereof may differ with the commission in its judgment as to some of the questions or answers, that alone is not a proper basis for holding that the commission acted illegally, arbitrarily or capriciously.
In the exercise of its best judgment and discretion, concededly in good faith and without fraud, and with regard to matters involving judgment and discretion, the commission has selected an objective standard of answers to the nine questions at issue and has applied it equally to all candidates when rating the papers before promulgating the list. No one received an illegal bonus, or a credit in excess of what was equally and legally allowed to all others. All were judged by the same standard.
In our system of government, functions are ápportioned: to the legislative department, the duty of making laws; to the executive, of executing them, and to the judiciary, of interpreting and applying them in cases properly brought before the courts (Massachusetts v. Mellon, 262 U. S. 447, 488). The judgment of the court is not to be substituted for the judgment of the commission. If it were, as the facts in this case persuasively indicate, the court in the final analysis would be drawn into preparing, revising and correcting questions in civil service examinations, supervising the examinations, and finally rating the papers. Such duties are not the court’s function. As this court said in People ex rel. Caridi v. Creelman (150 App. Div. 746, 749): “ The court can neither conduct nor supervise civil service examinations.”
Only with regard to question 82, where the final key states that all four possible alternative answers were deemed proper can it be said that the answer would not indicate comparative merit. But here also every candidate was treated equally. Before rating the papers and publishing the list, the commission in its discretion could have lowered the passing grade by one point and a fraction, and the result would be the same. That the commission has such power when exercised in good faith and before promulgating the list has been repeatedly held.
In Matter of Brady v. Finegan (269 N. Y. 571, affg. 246 App. Div. 526) the Municipal Civil Service Commission rules provided that a candidate must not receive less than 20% *504in any required subject. After an examination for patrolman but before rating the papers and publishing an eligible list, the commission amended the rule by substituting a minimum of 50% on any required subject in place of the 20% theretofore existing and applied it in its amended form to all candidates who took the examination. This court reversed an order of Special Term in favor of the petitioner against the Municipal Civil Service Commission and the Court of Appeals unanimously affirmed.
In Matter of Immediato v. Kern (278 N. Y. 680, affg. 254 App. Div. 672) the instructions. to candidates provided that the examination was planned to test their ability to read and follow instructions, one of which directed them to write on only one of three subjects. A large number failed to follow the instructions and wrote on all three subjects. They were, nevertheless, given a passing mark and placed on the eligible list being marked on the basis of 33%% for each subject with a deduction of 10% for failure to follow the instruction. This court unanimously reversed an order of Special Term in favor of a petitioner “ on the ground that the civil service commission acted within its discretion in grading the examination papers in the manner disclosed herein.”
In Wittenkind v. Kern (281 N. Y. 701) relied on by respondents, the commission lowered the passing mark after the ratings were completed and after the list had been published and exhausted. The court held the commission had no power then to lower the passing mark in the examination and thus add retroactively additional names to a published competitive list on a basis substantially different from the basis on which the original names had been added. But that state of facts is not here presented. Concededly, in this case the final key answers determined by the commission are being applied to all papers equally before publication of the list.
In the final analysis the issue amounts to nothing more than a difference of opinion between the commission and the petitioners or the commission and the majority of this court as to which were relatively the best or correct answers. By accepting more than one answer in nine out of ninety questions the commission did not deny a rating based on relative merits; the key answers published were obviously not subjective but objective tests.
The commission has already exercised its best judgment and discretion. The majority opinion insists that the commission re-exercise it in accordance with the judgment of the majority *505of the court as to all but “ a few ” undesignated questions. It cannot be emphasized too strongly that there is no claim here made of bad faith or fraud. The commission has acted with fairness and there is no warrant for substituting the judgment of the court for its honest judgment arrived at with painstaking care, establishing an objective standard equally applicable to all candidates.
If after already exercising its best judgment and discretion, the commission, on the coercive mandate of the court, were to revise its judgment and determine the “ one best ” answer to questions in dispute or to all but ‘ ‘ a few ’ ’ thereof — these or other candidates who took the examination may again contend that the revised answers are not the “ best ” and again ask the court to substitute its judgment for that of the commission.
In the conduct of civil service examinations the actions of the commission control unless they are illegal, arbitrary or capricious or done in fraud or bad faith. We may not say that some reasonable basis did not exist in each instance for the action taken by the members of the commission and in any event we may not substitute our judgment for theirs.
Accordingly, we dissent and vote to reverse the order appealed from and dismiss the petition.
Van Voobhis and Shientag, JJ., concur with Peck, P. J.; Dobe, J., dissents in opinion in which Callahan, J., concurs.
Order modified to permit the commission to eliminate from the examination such questions as it deems incapable of a best answer, making the necessary readjustment in the credit to be given on each of the remaining questions, and otherwise affirmed. Settle order on notice.