People ex rel. Finnegan v. McBride , 185 A.D. 482 ( 1918 )

Page, J.:

In the month of August, 1917, the municipal civil service commission called for an examination open to all nurses in the health department who had served for a period of one year or more, for promotion to the position of supervising nurse. The examination was held on November 27, 1917. The commission 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. There is no power in the commission to revoke a fist which it has once promulgated. In fact the Civil Service Law prohibits the making of a new eligible list so long as there are sufficient candidates upon any eligible list appropriate to the position therein specified. (See Consol. Laws, chap. 7 [Laws of 1909, chap. 15], § 14, as amd. by Laws of 1911, chap. 547.) The civil service commission is a body of limited jurisdiction. “ 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.” (People ex rel. Chase v. Wemple, 144 N. Y. 478, 482.)

There is no power given by either the Civil Service Law or the Greater New York charter to the municipal civil service commission to take such action, and hence the action of the board in rescinding the existing list was unlawful.

It is not necessary for us to consider the reasons alleged by the commissioners or the excuses offered in the affidavit presented on this motion for such action. Whatever may have been their reasons or motives they lacked the power to act. The application of the relator was made on behalf of herself and all the other nurses upon the list. The appellants claim that by writ of mandamus only the rights of the particular relator can be considered, but it has been held that where a number of persons are similarly situated, the court will not require separate mandamus proceedings to be insti-ii' tuted when, as in the case at bar, the relief that is asked by the relator is that the list containing her name be in effect re-established by the vacation of the order revoking the same. The fist could not be very well re-established having' only the

relator’s name upon it. Such an order as the one in this case was approved in People ex rel. Fowler v. Moskowitz (175 App. Div. 710, 713; affd., 220 N. Y. 669).

The order should be affirmed, with ten dollars costs and disbursements.

Dowling and Mbrrell, JJ., concurred; Clarke, P. J., and Laughlin, J., dissented.