Opinion
Argued January 4, 1949
Decided January 13, 1949
Appeal from the Supreme Court, Appellate Division, First Department, BOTEIN, J.
George Blumenthal for petitioners-appellants. John P. McGrath, Corporation Counsel ( Frank H. Crabtree and Seymour B. Quel of counsel), for respondents.
Paul Windels and David B. Tolins for Veterans' Organization of the Police Department, amicus curiae, in support of respondents' position.
In our judgment, question No. 60 is so indefinite and ambiguous as not to be capable of a "best" answer — the standard fixed by the Municipal Civil Service Commission for the examination in question. In point of fact, that was the initial view of the commission when, in publishing the tentative key answers, it accepted as correct the diametrically opposite answers "A" and "D", with the notation that the question "does not clearly indicate" whether or not "the licensee was licensed to carry the particular weapon found". Inclusion of that sort of question deprives the examination of a standard "sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience." ( Matter of Fink v. Finegan, 270 N.Y. 356, 362.)
In such a case, one answer could be selected as "best" only on some arbitrary or compromise basis, with resulting injustice and prejudice to those candidates who selected the opposite answer, previously accepted by the commission as equally satisfactory. Fairness and a regard for settled principles require that the question be eliminated from the examination and that there be credit adjustments for the remaining questions. Only in that way will arbitrary action be avoided, requisite objectivity assured. To require the commission to eliminate any question which is not susceptible of a single best answer does not constitute interference with the discretion committed to the commission, but merely serves to keep that body within the constitutional limits of its jurisdiction.
The order appealed from should be reversed, and the Municipal Civil Service Commission directed to eliminate question No. 60 from the examination, making the essential readjustment in the credit to be given on each of the remaining questions, with costs in this court and in the Appellate Division.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FULD, JJ., concur.
Order reversed, etc.