As the proceedings come to this court it has been held that the acts of the Board of Begents; exceeded its statutory authority and that it has acted contrary to the declared public policy of the State. The premise for these conclusions is based upon a violation of sections of the Education Law and decisional law as enunciated in Matter of Kurk v. Medical Soc. of County of Queens (24 A D 2d 897, affd. 18 N Y 2d 928).
The majority of this court is holding that “ The action of the appellants obviated the clear intent of the quoted sections of the Education Law and constituted an arbitrary and discriminatory act which impels us to uphold the determination appealed from.” *118In arriving at this conclusion, the majority apparently has determined that, as a matter of law, the Board of Regents does not have the power to inscribe “ M.D.” on the license of an applicant who has been granted a license to practice as a doctor of osteopathy (“ D.O.”).
It should be first and emphatically stated that the doctor of medicine diploma was granted to the intervenors-respondents and to the physicians similarly situated under the authority conferred by the State of California to a duly recognized educational institution of that State.
In this proceeding the Board of Regents in its amended answer and as part of its first affirmative defense alleges: “ That the Commissioner of Education, pursuant to his discretionary power to grant the M.D. license to qualified physicians licensed as such in another state and already qualified to practice medicine without limitation in New York State, duly granted the Interveners’ applications to have the letters M.D. endorsed upon their licenses after the letters D.O.”
Counsel for the Board of Regents in his affidavit (par. 6) stated: ‘ ‘ It should further be noted that at all times osteopathic physicians are and have been required to take the same licensing examination as other physicians and that upon completion of such examination osteopathic physicians receive an unlimited license to practice medicine (Education Law § 6512, subdivision 3).”
Paragraph 38 of the stipulation of facts before this court provides: “ Each osteopathic medical school recognized by the Board of Regents of the State of New York and by the Department of Education provides medical education which is at least equal, both in substances and in quality, to that provided by the non-osteopathic medical schools recognized by the Board of Regents and by the Department of Education.”
The issue seems to simplify itself to the following: The statutory law of this State requires that a graduate osteopath have inscribed on his license to practice the letters “ D.O.”. Does such fact bar the Board of Regents from allowing the additional inscription “ M.D.” when the osteopath in making his application meets all the requirements for using such inscription?
Section 6509 of the Education Law, as applicable to this case, provides in part as follows: “ On receiving from the board an official report that an .applicant has successfully passed the examinations and is recommended for license, 'the department shall issue to him a license to practice according to the qualifications of the applicant. Every license shall be issued by the *119department and shall state that the licensee has given satisfactory evidence of fitness as to age, character, preliminary and medical education and all other matters required by law, and that after full examination he has been found properly qualified to practice.”*
Subdivision 3 of section 6512 of the Education Law provides as follows: “ Graduates of colleges of osteopathy registered by the New York state education department who pass the medical licensing examination of the state of New York shall be issued a license to practice medicine and surgery. A license so issued shall contain thereon, following the name of the licensee, the letters ‘ D.O.’ Licenses heretofore issued to osteopathic physicians with limitations under prior statutes shall remain in force with such limitations continuing. ’ ’
The Education Law at no point requires or even suggests that the Regents “ must or shall ” inscribe the letters “ M.D.” upon any license. Curiously, it does not appear that the Regents are required to inscribe upon any license any particular descriptive letters except in the case of osteopaths and possibly in the case of nurses. (See Education Law, § 6907, subd. 1.) Apparently by custom or appropriate rules, the Regents have placed the inscription of ‘‘ M.D. ’ ’ on licenses issued to generally qualified medical practitioners. It would appear that in the past the type of designation at issue in this case has been determined by both the examination requirement and the particular scholastic diploma held by the licensee.
It has been the long-established policy of the Regents to add such an inscription according to the qualifications and scholastic degree of a licensee. The statutory requirement that the inscription “D.O.” be noted on a license neither prohibits nor permits the additional inscription of “ M.D.”. The purpose of the various provisions as to licenses is, as found by the majority, to inform the public of the difference in the training of the licensees. (See Matter of Kurk, supra.) Where a licensee is duly qualified *120to use a particular descriptive title, be the same initials or otherwise, the addition of such a title following the name of the licensee is obviously in accord with such a public policy and specifically in accord with the duty of the Regents pursuant to section 6509 of the Education Law. Under such circumstances, this court should not interpret the power of the Regents as more restricted than the construction given by that body itself to its power. (See Lightbody v. Russell, 293 N. Y. 492, 495, 496; Curtis v. Eide, 19 A D 2d 507, 508; Matter of Insurance Co. of North America v. Senior, 27 A D 2d 24, 29, 30, revd. 21 N Y 2d 761 on dissenting opn. at the Appellate Division.)
It should be noted that in examining the power of the Regents to add the inscription of “ M.D.” to the license of a doctor of osteopathy, it would appear that if the Regents refused such an inscription to an applicant who is duly qualified by examination and scholastic degree, such a refusal would be discriminatory to the applicant in terms of prestige.
It appears that in accord with the directive of the Legislature in section 6509 of the Education Law that the Regents has the power to inscribe “M.D.” upon appropriate licenses — conceded by the petitioner — and the requirement that “ D.O.” appear thereon neither adds nor detracts from such power.
As to decisional law, the majority, as noted above, rely upon the Kurk case (supra), but I am unable to say that the rationale of that decision either affects or is decisive of the present proceeding. There was no issue in that case with reference to the authority of the Board of Regents to inscribe “ M.D.” on petitioner’s license. The issue was the right of the petitioner to become a member of the Medical Society of Queens County, which Society contended that pursuant to section 173 of the Membership Corporations Law it had the right to establish requirements for membership and that its educational requirement did not violate any provision of the Education Law and did not so proscribe petitioner’s practice of medicine and surgery as to constitute a denial of equal protection of the law.
It should be further noted that the Board of Regents of the State of New York is not bound by or obligated to follow what happens in some other jurisdiction.
The Board of Regents was not prohibited by law from granting THE REQUEST OF THE INTERVENORS.
The Board of Regents properly exercised its discretion and the power of the court to review is limited. (See Matter of Marburg v. Cole, 286 N. Y. 202, 208, 212; National Psychological Assn. for Psychoanalysis v. University of State of N. Y., 8 N Y 2d 197, 205, app. dsmd. 365 U. S. 298; Wasmuth v. Allen, 14 N Y 2d 391; *121Paterson v. University of State of N. Y., 14 N Y 2d 432; Matter of Erlanger v. Regents of Univ. of State of N. Y., 256 App. Div. 444, 451; Matter of Gormeley v. New York Daily News, 30 A D 2d 16, 22.)
In Paterson (supra, p. 439), the court said: “ It is not unlike the problem presented in National Psychological Assn. v. University of State of N. Y. (8 N Y 2d 197, 204, app. dsmd. 365 U. S. 298) where we held it was not unlawful delegation of legislative power to permit the board to determine the ‘ substantial equivalent ’ of a doctoral degree, as well as to determine what constituted ‘ satisfactory supervised experience ’ (see, also, Matter of Marburg v. Cole, 286 N. Y. 202).”
The burden of proving that the action of the board is arbitrary, capricious or unreasonable, or a violation of law, rests upon the petitioner.
It is not a question of how the court might determine the issue but, rather, did the administrative agency properly exercise its discretion?
Insofar as the petitioner in this case might have been said to raise questions as to the qualifications of the intervenors as doctors of medicine, it appears without dispute: that the intervenors took the same examinations as an “ M.D.”; that the intervenors are licensed to generally practice all phases of allopathic medicine as well as osteopathic medicine; that the education of the intervenors was identical with that required for an “ M.D.” and, additionally, included instruction in the osteopathic arts; that the intervenors are the holders of doctor of medicine {“ M.D.”) degrees.
Upon the present record it is established that the intervenors are well qualified to have the title “ M.D.” and the Regents were not arbitrary or discriminatory in adding such an inscription to the licenses of the intervenors.
It should be noted that in considering the power of the Regents to designate an osteopath as an “ M.D.”, the degree today earned by a graduate from an osteopathic school apparently is the equivalent of that earned by an “ M.D.” and merely indicates a specialty or additional training. Under such circumstances it may well be that the receiving of the particular degree “ doctor of medicine ” is not an essential prerequisite to inscribing the license of a qualified “ D.O.” with the additional “ M.D.” indication.
Reference is made to discrimination, but the record does not spell out any factual situation which is or might be discriminatory to osteopaths, unless we infer it from the prestige of “ M.D.”. As a matter of law, the inscription is not necessary on the inter*122venors’ licenses, but the Board of Regents has put it on the same and established a custom which it may or may not follow. If a general medical practitioner can have as a matter of • right ‘'M.D.’’, then a duly qualified “ D.O.” cannot now be denied that right and any statute so discriminatory might well be unconstitutional.
As noted hereinabove, the petitioner’s contention as to misleading the public is a non sequitur in that the additional inscription in fact gives notice to the public of the licensees’ actual qualifications.
It cannot be found on this record that the Board of Regents in any respect violated the Education, or any other, Law, but to the contrary, on a finding supported by the record that the intervenors were qualified by education and experience, properly exercised its discretion in granting the inscription.
If the majority intends to question the contents of the dissent, it should be here stated that my reasons for reversal are based solely upon the present record and legal arguments of the respective parties. However, in view of the majority’s reference to the dissent, I would now go outside the record and observe that the American Medical Association in convention at Bal Harbour, Florida, has recommended to county and State medical societies to accept osteopaths as active members and further suggested that accredited hospitals accept osteopaths on their medical staffs (see Wall Street Journal, Dec. 4, 1968). The American Medical Association further asserted that osteopathic schools have been teaching much the same medicine as taught by AMA recognized medical schools, all of which emphasizes that the expertise of the Board of Regents should not, ordinarily, be subjected to court interference.
The judgment should be reversed, and the petition dismissed.
Gibson, P. J., Reynolds and Staley, Jb.., JJ., concur with Gabbielli, J.; Heblihy, J., dissents, and votes to reverse and dismiss the petition, in an opinion.
Judgment affirmed, with costs.
The section further provides: “ An applicant who meets the requirements of this article as to preliminary and professional education, who presents evidence of successful practice, or professional experience satisfactory to the commissioner of education and who presents evidence satisfactory to the commissioner that he has been duly licensed by proper authority in any other state, territory, district or possession of the United ¡States after passing examinations which were equivalent as to subject matter and standards to those of the state of New York at that time, may without further examination on payment of forty dollars to the department and on submitting such further evidence as the commissioner may require, receive from the commissioner in his discretion and endorsement of his license or diploma conferring all rights and privileges of a license issued by the department after examination.”