The question on the examination, as set forth in the majority decision, was apparently drafted without due regard as to what would constitute the correct answer. The majority decision would seem to affirm this statement. The examination directive as to the question involved stated that the purpose of the answer was 1 ‘ to test your knowledge of practice and procedures generally applicable to courts of record in New York State” and further “ 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.)
Section 260 of the Penal Law and section 400 of the Code of Criminal Procedure were on the statute books at the time of the examination. Further research disclosed that People ex rel. Blue v. Kearney (181 Misc. 981, affd. 292 N. Y. 679 [decided 1944]) had declared the latter section unconstitutional on the ground that the accused would be put in double jeopardy. However, section 400 of the Code of Criminal Procedure was included in Gilbert’s Criminal Code for the year 1963 and a reading of the editorial notes thereunder would hardly alert an attorney that the section had been declared unconstitutional. Under “ Constitutionality ”, the Kearney case is cited without comment.
Following the examination, the civil service examiners first designated “D” as the correct answer but before publication they were advised of the Kearney decision and decided to recognize “ C ” as the correct answer. It may be cogently argued that such decision by the examiners in no way legally affected the rights of the petitioners but the troublesome problem is whether or not both answers were acceptable. In Matter of Acosta v. Lang (13 N Y 2d 1079,1081) the court said: ‘ ‘ Where there are two equally acceptable answers to a question, the selection of one as the correct answer must be deemed to be the result of an arbitrary decision (Matter of Fink v. Finegan, 270 N. Y. 356; Matter of Gruner v. McNamara, 298 N. Y. 395).”
The majority asserts that section 260 of the Penal Law is an exception to the rule of People ex rel. Blue v. Kearney *238(supra) and that therefore, it is not generally applicable to courts of record in the State of New York. I cannot perceive the relationship between whether or not the statute is an exception and whether or not it is generally applicable to all of the courts of record of the State of New York.
It is not questioned that the Civil Service Commission was acting in good faith but it unwittingly approved of an examination question which was inexact and inappropriate, subject to iseveral interpretations, and where answer “ C ” or “ D ”, or both, could be accepted as ‘generally applicable ’ ’ to courts of record in New York State. Under such circumstances, it seems to me that to say that “ C ” was the best answer is arbitrary.
The difficulties encountered before deciding which was the right answer may well have required the services of the proverbial ‘ Philadelphia lawyer ’ ’. The application of ‘ horn-book law ” would be of little help to the candidates trying this particular examination.
There is, in my opinion, no fair basis for the majority conclusion that “ C ” is the only acceptable answer.
Therefore, I would reverse the judgment which dismissed the petition, on the law and the facts, and grant the relief requested therein.
Gibson, P. J., Taylor and Aulisi, J J., concur with Reynolds, J.; Heblihy, J., dissents and votes to annul, in an opinion.
Judgment affirmed, without costs.