Hymes v. Schechter

Per Curiam. This is an appeal from an order dismissing a petition in an article 78 proceeding. The petitioners seek to annul the determination of the Civil Service Commission in the grading of Part I of a written promotion examination for the position of assistant housing manager in the New York City Housing Authority, and to restrain any appointments from the eligible list promulgated therefrom. After the examination was held, the commission concluded that it had been too difficult, and that so many candidates would be eliminated that the number remaining would be insufficient to meet the needs of the department. It thereupon decided to apply a comparative method for grading the papers by the use of a conversion formula, in accordance with the provisions of rule V (§ V, subd. 1), of its rules. Heretofore, we held that the use of a conversion formula by the commission was appropriate (Matter of Robbins v. Schechter, 3 A D 2d 1010, affd. 4 N Y 2d 934; see Matter of Dowling v. Brennan, 284 App. Div. 563, 566, 567). It is urged, however, that the rule was not adopted until after the examination took place, whereas in Robbins, it had been promulgated before the examination was given. The chronology is as follows : The conversion rule was adopted by the commission on March 20, 1956; the examination was held on April 7, 1956; the rule was approved by the Mayor and the State Civil Service Commission on April 24, 1956; the list was promulgated on March 29, 1957, almost a year later. There is no question that the commission is authorized to amend its rules at any time upon approval of the Mayor and the State Civil Service Commission (Civil Service Law, § 11). The only issue is whether the approval by the Mayor and the State Civil Service Commission, after the examination was given, but before the eligible [296] list was promulgated, of the rule adopted by the Municipal Civil Service Commission before the examination was held is improper, illegal, and violative of the rights of the petitioners. The rules of the Civil Service Commission (rule V, § V, subd. 4) provide that “ The required passing rating in any test, subject or part of an examination shall be fixed by the Director of Examinations prior to the disclosure of the identities of the candidates therein.” The conversion formula was applied to the test in question under this rule. That it resulted in a greater number of applicants passing Part 1 of the examination than would have been the case, if another method of rating papers had been used, should not be deemed such an abuse of administrative discretion as to invalidate the list established therefrom. In Matter of Abramson v. Commissioner of Educ. (1 A D 2d 366) where a 5% credit was granted to all candidates on a written test after it was taken, but before the candidates were identified, the court said (p. 374): “No constitutional principle was violated by the board in this case by its action in lowering the ‘ hurdle ’, after the written examination had been given, and in accordingly allowing candidates whom it believed to be fit and qualified, to go on to the other phases of the examination.” We see no difference in principle between that case, where a larger number were made eligible in the first phase of an examination by a 5% credit, and this, where the same result was achieved by the adoption of a rule. Since the commission determined, in good faith, that the examination was too difficult, we see no infringement of a constitutional or statutory right in the adoption of the conversion formula and its application to the entire class. Nor was its discretion exercised arbitrarily. (See Matter of Abramson v. Commissioner of Educ., 1 A D 2d 366, 372, supra; Matter of Brady v. Finegan, 269 N. Y. 571.) The order should be affirmed, without costs, on the law.