This is an appeal from an order of the Supreme Court, Albany County, dismissing appellants’ petition in a proceeding brought pursuant to article 78 of the CPLR to compel the Civil Service Commission to grant them credit for an answer given on a competitive promotional examination.
The 17 appellants took competitive civil service examinations for the posts of Deputy Clerk or Assistant Deputy Clerk, Supreme Court, First Department. Question 28 on both examinations read:
“ The court may direct the jury in a criminal proceeding to be discharged before the case is submitted to them if it appears from the testimony that
“ 1. The facts proved constitute a crime of a higher nature than that charged in the indictment.
‘ ‘ 2. The court does not have jurisdiction of the crime charged in the indictment.
‘ 3. The facts as charged in the indictment do not constitute a crime.
“ A. 2 only
“ B. 1 and 2 only
“ C. 2 and 3 only
“D. 1,2 and 3.”
All petitioners gave “ D ” as their answer and “ D ” was the tentative key answer when the petitioners examined such answers in accordance with the commission’s “pre-rating appeal” system. Subsequently, however, the key answer was changed by the commission to “ O ” when other examinees disputed the answer. The present proceeding seeks to review that change, there being no further administrative remedy .available.
*236To sustain their position petitioners need only show that their answer is better or at least as acceptable as the key answer (Matter of Acosta v. Lang, 13 N Y 2d 1079, 1081). Here the question resolves itself to whether in a criminal case a Judge may discharge the jury before the case is submitted to them if the facts proved constituted a crime of a higher nature than that charged in the indictment. If the answer is “ yes ”, “ D ” is the correct answer and petitioners must prevail. If “ no ” is the answer, “C” is the correct answer and the order appealed from must be affirmed. Unlike some situations there is no middle course which would make both answers-acceptable. The original answer of “ D ” was based on section 400 of the Code of Criminal Procedure which -specifically supports petitioners’ answers. However, while this law still appears in the code it was declared unconstitutional in People ex rel. Blue v. Kearney (181 Misc. 981, affd. 292 N. Y. 679) on the ground that it exposes defendants to double jeopardy. The petitioners acknowledge this but assert that the questions on criminal law were explicitly based on statutory provisions and that since section 400 of the Code of Criminal Procedure was still in the printed texts, answer “ D ” should be accepted. The instructions for that part of the exam, however, -state in pertinent part: “You are not charged with knowledge of the 1963 Law. Therefore, where statutes are involved, base your answer of [sic] the Law in effect on December 31, 1962.” (Emphasis added.) We find it implicit from these directions that the questions were not based solely on statute law. Petitioners also assert that “ D ” is acceptable by virtue of section 260 of the Penal Law. Section 260 provides: “ A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury and directs the defendant to be tried for the crime itself.” This -statute has not, to our knowledge, met the fate of -section 4001 and that section 260 allows discharge of a jury when the facts indicate “ a crime of a higher nature than that charged in the indictment ” (emphasis added) seems evident. Nevertheless this is an extremely narrow exception to the general rule as set forth in People ex rel. Blue v. Kearney (supra), and the examination instruction -specifically call for the ‘ ‘ practice and procedures generally applicable to courts of record in New York State” (emphasis added). Section 260 is “ generally applicable ”, of course, in the sense that it applies to all cases of indictments charging attempts to commit crimes (see People v. Cosad, 253 App. Div. 104, 108) but it is an isolated and excep*237tional provision nevertheless. More important, however, it does not constitute, and is not indicative of “ practice and proceedures generally applicable ” (emphasis added). Thus under the test instruction “ C ” is the only acceptable answer.
We find no merit in petitioners’ contention that the Civil Service Commission’s “ pre-rating appeal ” system is arbitrary or capricious (Civil Service Law, § 6, subd. 5).