Opinion
November, 1935.
Present — Lazansky, P.J., Carswell, Tompkins, Davis and Johnston, JJ. [ 157 Misc. 8.]
The petition of a paid member of the fire department of the city of Mount Vernon asked for a peremptory order of mandamus directing the municipal civil service commission of that city to change its notice of examination for the position of first deputy chief of the fire department so as to exclude from the examination volunteer members of the department who had served five years or more, and to limit the examination only to regular members of the paid fire force holding the rank or grade of first grade fireman in the department, and for other relief. Order denying the application for order of peremptory mandamus unanimously affirmed, without costs, as a matter of law and not in the exercise of discretion. It was within the discretion of the municipal civil service commission to determine whether the examination should be open to those having experience in executive capacity, whether they were paid or volunteer firemen. ( People ex rel. Schau v. McWilliams, 185 N.Y. 92; People ex rel. Merritt v. Kraft, 145 App. Div. 662; affd., 204 N.Y. 626. )