This article 78 proceeding was brought to review the determination of the Civil Service Commission denying an appeal from a decision of the Personnel Director marking petitioner “not qualified” for appointment to a city position. The reason assigned was his “ arrest record ”. Such record disclosed a wayward minor adjudication arising out of a charge of burglary and the possession of burglar’s tools; also, a later conviction, on a plea of guilty, to assault in the third degree, upon which conviction he was sentenced to one year in the penitentiary and sentence suspended ; and further listed were a number .of convictions for traffic violations. It does not appear, however, as pointed out by the majority opinion, whether or not the determinations of the Personnel Director and ■ of the Commission were improperly influenced by the wayward minor adjudication.
Note should be made of the fact that we have an incomplete record here. It does not contain a copy of the Commission’s *113determination sought to be reviewed and annulled. Following the argument, the court was furnished with a copy of a notice sent by the Commission to the petitioner which merely stated that the Commission “ at its meeting held on the above date denied your appeal on your disqualification for the aforementioned position.” Of course, the notice which we now have was not the determination. The resolution or other action taken at the meeting of the Commission would constitute the determination and the same should have been made a part of the record.
The petitioner urges that, in any event, we should annul the determination of the Civil Service Commission because he was denied a “statutory right” to a hearing before the Commission. He claims that he was denied due process in that the Commission at its hearing, refused to receive the testimony of a social worker with respect to the underlying facts involved in the assault conviction and as to his good character. But, as Mr. Justice Stetter has pointed out, there was no statutory provision entitling him to a hearing. Inasmuch as he had not yet acquired the status of a municipal employee with tenure or contractual rights, the Civil Service Law provisions for a hearing were not applicable. Neither statutory provisions nor fundamental law entitled him to a hearing. (See Matter of Demilio v. Lounsbery, 275 App. Div. 979; Matter of Dornfest v. Hilliard, 200 Misc. 649; People ex rel. Woodward v. Draper, 67 Misc. 460, affd. 142 App. Div. 102, affd. 202 N. Y. 612.)
There were provisions by statute, however, entitling the petitioner to “ a written statement of the reasons” for his disqualification and to be “ afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.” (Civil Service Law, § 50, subd. 4.) But, as stated by Mr. Justice Valente, in the majority opinion, 1‘ Admittedly those provisions do not mandate a statutory disqualification hearing”. Supplementing these provisions, the Commission had adopted a rule providing that it should “ afford such appellant a hearing with representation by counsel” (Bules and Begulations of N. Y. City Civ. Serv. Comm., rule IV, § III, par. 4.3.5, subd. [b]); but, in my opinion, this rule did not have the effect of entitling the petitioner to a trial or judicial type of hearing.
The requirement of a “ hearing ” as a condition precedent to particular administrative action, whether the requirement is by virtue of statutory or administrative regulation, is not necessarily to be construed as requiring a trial or judicial type hearing. The character and the scope of the “hearing” *114required depends upon the type of the proceeding before the administrative body and the nature of the issues and rights of the parties to be determined therein. 11 Hearing procedure must be looked at as a whole, and must be adapted in its entirety to the accomplishment of its essential purpose.” (1 Benjamin, Administrative Adjudication in the State of New York, p. 108.) Where not otherwise required for the proper prosecution of the proceeding, such as in the case of a true adversary proceeding, or required for the proper protection of the rights of the parties, an informal hearing is all that is necessary. (See Matter of Town of Waterford v. Water Pollution Control Bd., 5 N Y 2d 171; Matter of Kiamesha Concord v. Lewis, 15 A D 2d 702; Matter of Muscillo v. Town Bd. of Oyster Bay, 28 Misc 2d 79; Matter of Bogan v. Municipal Civ. Serv. Comm., 29 Misc 2d 750, affd. 14 A D 2d 792, mot. for lv. to app. den. 10 N Y 2d 709.)
Clearly, this proceeding before the Commission was not an adversary type proceeding. Furthermore, no fundamental right and no property or quasi-property right of the petitioner was at stake in the proceeding. (See, for instance, Matter of Hecht v. Monaghan, 307 N. Y. 461.) Involved were solely issues of policy and the exercise of discretionary rather than judicial or quasi-judicial powers. Thus, the validity of the determination rendered is not to be appraised in light of the “ substantial evidence ” test but would depend upon whether such determination constituted a reasonable rather than a mere arbitrary or capricious exercise of the power vested in the Commission. Under these circumstances, the petitioner was not entitled to the trial or judicial type of hearing with an examination and cross-examination of witnesses (see Matter of Griffin v. Thompson, 202 N. Y. 104; People ex rel. Kennedy v. Brady, 166 N. Y. 44, rearg. den. 166 N. Y. 631; Matter of McGuire, 157 App. Div. 351, affd. 209 N. Y. 597; People ex rel. O’Keefe v. Hynes, 101 App. Div. 453) and he may not challenge the procedure employed at the discretionary hearing held by the Commission unless it operated to deprive him of a fair opportunity to explain the charges ag’ainst him. (See Matter of McGuire, supra, p. 359; CPLR 7803, subd. 3.)
In light of the foregoing and upon the record here, I would not hold that the Commission was bound to receive the testimony of the social worker who had made the investigation into the circumstances surrounding the assault conviction. The petitioner was himself sworn and was given full opportunity of testifying as to all relevant facts; the Commission *115received the several character references offered by him; and his counsel was fully heard. The petitioner was not curtailed in any way in the making of a first-hand explanation of the charge. On the other hand, the testimony of the social worker would have been principally hearsay in nature and cumulative in effect. The refusal of the Commission to hear such testimony did not constitute an abuse of discretion where, as appears here, it had a right to hold and did hold that such testimony would not assist it in the proper exercise of its discretionary powers.
I do agree, however, with the majority that the Personnel Director and the Commission, in determining that petitioner was “ not qualified ”, were not entitled to take into consideration petitioner’s adjudication as a wayward minor; and that, in view of the state of the record, the matter should be remanded for reconsideration and that, thereupon, if the Commission determines that the petitioner is not qualified, it should set forth the basis or reasons for arriving at such determination.