Motion for a writ of mandamus directing respondents, constituting the municipal civil service commission of the city of New York, to restore relator’s name to the eligible list for the position of court attendant.
[1.2] Relator took part in and passed the examination held by respondents and was placed on the eligible list. Thereafter respondents examined into the character of relator, and after such examination removed his name from said eligible list. Article 5, § 9, of the state Constitution, provides in part:
“Appointment and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained so far as practicable, by examinations. * * * ”
In pursuance of this section of the Constitution the Civil Service Law was enacted, and it provided among other things, that the civil service commission should have the power to refuse to certify applicants who lack certain qualifications,'or who have been guilty of infamous or disgraceful conduct, or who have practiced any fraud in securing their eligibility or appointment. Pursuant to these provisions the respondents examined into the relator’s character, and for reasons which developed from said examination ordered that his name be stricken from the eligible list. Subsequently, at his request, a rehearing was given the relator, but without changing the respondents’ decision.
While respondents gave no special reasons for removing relator’s name from the eligible list, it is apparent that questionable business transactions between the relator and one of his associates greatly influenced the respondents in their decision. These transactions resulted in a suit against the relator, at the trial of which counsel for both sides stipulated that a simple judgment as for money had and received be entered against relator. Said judgment was never paid, and has been included by relator in the schedule accompanying his petition in bank*573ruptcy. I do not think the judgment in the action in the Supreme Court is binding on the respondents to the extent of precluding them from examining into the evidence which was adduced. In Desbecker v. Cauffman, 169 N. Y. 547, 62 N. E. 674, depositions in supplementary proceedings were held to be properly admitted on a subsequent trial against the parties making the depositions, either as admissions or as affecting their credibility. I am of the opinion that in the hearing before the respondents the same principles are applicable, and that any testimony adduced at the trial of the action in the Supreme Court should be admissible in order to determine the character of the relator as well as his veracity and credibility.
Moreover, relator in his examination before the respondents admitted that the judgment in the Supreme Court was not on the merits. Respondents’ power to pass upon the fitness of candidates includes fitness of character as well as mental efficiency. They are the sole judges in the matter, and the court will not interfere, unless their determination is arbitrary, any more than it would interfere with respondents’ determination on the question of relator’s mental and physical qualifications after an examination. I do not consider that respondents’ action was arbitrary.
Motion denied.