Finnegan
v.
McBride

Supreme Court, Bronx Special TermJul 1, 1918
104 Misc. 153 (N.Y. Misc. 1918)
104 Misc. 153172 N.Y.S. 11

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July, 1918.

John W. Collopy, Jr., for relator.

William P. Burr, Corporation Counsel, Edward S. Malone, Assistant Corporation Counsel, for respondents.


Relator is a trained nurse in the department of health, child hygiene division. She seeks a peremptory writ of mandamus against the municipal civil service commission in order to nullify their cancellation of a list of eligibles for promotion promulgated by them. In November, 1917, an examination was held, under direction of the then commission, for promotion from the position of nurse to that of supervising nurse. The respondents themselves on March 4, 1918, made up and promulgated an eligible list from the successful candidates (of whom the relator was one) and duly certified such list to the department of health. On April sixth they canceled such list and ordered a new examination, which has not yet been held. At the outset the question is whether the commission has power to revoke a list which it has once promulgated, for if it has it is obvious that the courts, except in cases of abuse of such power, should refrain from interference. But when the commission has acted, after deliberation, there is no power to annul such action. Certainly no such authority is found, either expressly or by implication, in the statute under which the commission is appointed. The cases hold that a body of limited jurisdiction may not act in review of or annul its own action. In People ex rel. Chase v. Wemple, 144 N.Y. 478, 482, it was said: "It is the general rule that officers of special and limited jurisdiction cannot sit in review of their own orders or vacate or annul them." This principle has been frequently reiterated. And the respondents do not call attention to any decision authorizing the vacation of their own previous determination. Moreover, the respondents seek to justify their action upon two grounds neither of which seems adequate: First. That acting supervising nurses were permitted to rate themselves and other nurses as to previous experience in the very examination in which they themselves were to compete. However questionable this practice may seem, it is rendered immaterial in this instance by the fact that the respondents, after their attention had been called to this condition, and before promulgating the list, deliberately refused to cancel the examination on that ground. Moreover, the aforesaid ratings were merely tentative, and were thereafter reviewed by no less than three separate bodies. The fact that candidates other than these acting supervising nurses outranked them in the eligible list is in itself cogent evidence that in this examination no untoward result followed the practice referred to. Second. It appeared that after the list was promulgated several nurses at the top of the list voluntarily waived their precedence in favor of an acting supervising nurse, so that she might retain her position. While this practice, whether it be called a conspiracy or otherwise, deserves severe condemnation, nevertheless it cannot affect the list previously established. It might result, at most, in making the waivers ineffectual; but the list from which the waivers were made cannot be annulled by reason of acts subsequently occurring. Relator also complains that although all candidates took the same examination the list was divided into two classes, one relating to child hygiene, the other to preventable diseases, with the result that a nurse far down upon the general list might nevertheless have a higher rating in one division and thus receive an appointment in advance of a nurse outranking her on the general list. There appears to be no warrant for such procedure in any statute or even in respondents' own regulations. In conclusion, it should be observed that while in some instances it may be a matter for regret that the commission has no power to annul its previous deliberate action, yet it must not be forgotten that if lists may be promulgated only to be annulled at the pleasure of the commission it will prove increasingly difficult to secure a desirable class of public servants. Candidates will hesitate to prepare for and submit to examination if, after being declared eligible, they are to be subjected to the caprice, however well intentioned, of the commission or its successors. While it is true, in general, that relief will be awarded to none but the relator in mandamus proceedings, and that the writ herein is prayed for in behalf of relator and others similarly situated, it is clear that proper relief could not be afforded to relator, and confusion would result if the cancellation were revoked as to her only and permitted to stand as to the other eligibles. The writ will therefore issue as prayed for. This course seems to be supported by People ex rel. Fowler v. Moskowitz, 175 A.D. 710.

Ordered accordingly.