ADAMS, P.J.:

The sole question litigated in this proceeding was whether or not the relator's diminutive stature was such a physical disqualification as justified the defendant in refusing to assign him to duty upon the regular police force of the city.

The act of 1900 provides that within thirty days after the same takes effect the commissioner of public safety shall provide for the physical examination of all members of the existing park police force, and shall appoint such of them as "are found on such examination to be physically qualified for police duty to be members of police force of said city." This examination, it seems quite clear to us, calls for the ascertainment of a fact. The surgeon to whom is committed the duty of determining the question in the first instance requires the applicant to undergo a physical examination, and this may disclose the existence of some latent disease or some other bodily infirmity which would, in the opinion of the examiner, unfit the applicant for police duty, in which event it becomes his duty to so certify.

In the present instance had Apfel's examination disclosed that he was subject to heart disease or afflicted with hernia, or that one leg was half an inch shorter than the other, and the examiner had so certified, such certificate would certainly be the expression of a judgment upon the part of the examiner, which might have been erroneous, it is true, but one which, nevertheless, was founded upon supposed facts, and no reason occurs to us why the same is not true of the defect which was certified to. Shortness of stature may or may not be a physical disqualification for service upon the police force; certainly if a man was but five feet in height and weighed 200 pounds there could be no question but that his physical make-up would operate as a disqualification for active police duty; and in the relator's case it seems that a height of five feet and five and seven-eighths inches was so regarded by the examining surgeon, and he so certified. Whether his judgment was well founded is not the question. It was a judicial determination and one which was founded upon facts which were established to the satisfaction of the person rendering the same.

The evidence taken upon the trial of this proceeding seems to demonstrate most conclusively the correctness of this proposition.

Several persons, including city officials and police officers, were called as witnesses for the defendant, and they testified unqualifiedly that a man who was less than five feet and six inches in height was not physically qualified to render satisfactory service as a policeman, and they gave their reasons for such conclusion. Upon the other hand, however, witnesses upon behalf of the relator, including an army officer of experience, testified that such a diminutive stature as was found in the relator did not amount to a physical disqualification. Thus it will be seen that there was presented to the court a straight issue of fact, the evidence relating thereto being highly contradictory in its character; that upon such conflict the court reached a determination which was favorable to the relator; but that in reaching this conclusion it was forced to determine certain controverted facts. In these circumstances it would seem to necessarily follow that the determination of the question of physical qualification was one involving the exercise of judgment; that it was, therefore, quite as judicial in its character when reached by the examining officer as it was when decided by the court; and if so, then it was one which cannot be reviewed by mandamus.

The primary office of a writ of mandamus is to command action upon the part of a person or body whose duty consists in the performance of mere ministerial acts prescribed by law. ( People ex rel. Harris v. Commissioners, 149 N.Y. 26; People ex rel. Myers v. Barnes, 114 id. 317; People ex rel. Francis v. Common Council, 78 id. 33.)

In the case first above cited the distinction between ministerial and judicial acts is thus stated: "When the law requires a public officer to do a specified act, in a specified way, upon a conceded state of facts, without regard to his own judgment as to the propriety of the act and with no power to exercise discretion, the duty is ministerial in character and performance may be compelled by mandamus, if there is no other remedy. When, however, the law requires a judicial determination to be made, such as the decision of a question of fact or the exercise of judgment in deciding whether the act should be done or not, the duty is regarded as judicial, and mandamus will not lie to compel performance."

And if we are correct in our view that the determination of the relator's physical qualification was, under the facts of this case, judicial in its nature, then, tested by the distinguishing rule above quoted, it would seem to leave no room for any other conclusion than the one above stated, viz., that the relator has mistaken his remedy.

Perhaps the application of another test will make this proposition even more clearly demonstrable. In the case of People ex rel. Francis v. Common Council (78 N.Y. supra), the office of a writ of mandamus is thus defined: "Where a subordinate body is vested with power to determine a question of fact the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be."

Now, in the present case, if the examining surgeon had refused absolutely to certify the result of his examination, he could doubtless have been compelled by mandamus to act; that is, to perform the duty which the law imposed upon him; but could he by the same process have been forced to decide the question of physical qualification in any particular way? Clearly not; and if not, then a review of his action must be sought through some other medium than the one resorted to by the relator. From whatever point of view this question is considered, but one result seems obtainable, and that one is adverse to the relator's contention.

We conclude, therefore, that the order appealed from should be reversed and the writ dismissed; but as the question is somewhat novel, without costs to either party.

All concurred.

Order reversed and writ dismissed, without costs to either party.