able basis. It is clear that petitioner is not entitled to the relief sought (Matter of Strauss v. Hannig, 256 App. Div. 662, affd. 281 N. Y. 612; Matter of Schwab v. McElligott, 282 N. Y. 182; Matter of Eichler v. McElligott, 259 App. Div. 151, affd. 283 N. Y. 716; Matter of Tiernan v. Walsh, 268 App. Div. 962, affd. 294 N. Y. 299). The court had power to dismiss these proceedings at any time prior to the issuance of the final order for insufficiency in law (People ex rel. Ajas v. Department of Health, 138 App. Div. 559).” It seems to be petitioner's theory that the rule is not valid because it is not expressly mentioned in the provisions of section 14 of the Civil Service Law. But the enumeration in that section of certain grounds upon which the Civil Service Commission “may” disqualify candidates is not a restriction upon their power to act. There is noth . ing in the rule to indicate that the Commission may not specify disqualification for reasons other than those enumerated in section 14. That was the opinion of this Court in Matter of Ciasuli, supra, in which case the petitioner, like the petitioner in this case, was certified subject to "investigation or medical test or subject to any qualifying test provided for in the original examination” and was thereafter marked “not qualified” before the end of his probationary term on the ground that he was subject to mental disorder. Discussion with petitioner's counsel before the final printing of this brief discloses the fact that counsel has reserved for his oral argument the discussion of facts which do not appear in the printed portion of the record (see stipulation, fol. 146), and a claim that there are issues of fact involved herein which should be tried by a jury. The decision in the Ciasuli case, supra and the decisions cited therein indicate that neither Court nor jury are in position to decide the merits of a medical question as to which there may be a dif a ference of medical opinion. POINT II The action of the respondents was not arbitrary since the evidence before the Municipal Civil Service Commission fully supports the disqualification of the petitioner on a ground within the scope of the examination. The examination in which petitioner competed was conducted under a rule of the Municipal Civil Service Commission reading as follows (fols. 63, 47, 75): “Any candidate who cannot qualify before the psychiatrist or any candidate who has a mere history of confinement in an institution for mental illness must be rejected; a history of nervous disorder may reject. * * "Emotional instability rejects.” The record in this case is replete with evidence that petitioner suffers from a "nervous disorder” and that he is emotionally instable. Dr. Tillim, who prepared the report upon which the Municipal Civil Service Commission acted upon petitioner's mental qualifications, enumerates statements from the reports of the many medical men who had examined petitioner. These statements are (fols. 77-80): By Dr. Bardach “The candidate must be considered a poor risk for the Police Department.” By Dr. Goodhart “In my opinion the question of the man's ability to fulfill those elements (duties of the position) is open to serious doubts.” By Dr. Deutsch “This patient is a tense, repressed detached individual who sees all his problems on the superficial level. He externalized responsibility to others. *** He is in need of psychoanalytic help to aid him to release the inner feelings and softness which is present. By Dr. Coville “My evaluation of the problem also indicated the need for extensive psychotherapy and he was referred to the Adult Guidance Clinic of Catholic Charities, Brookklyn. A recent telephone conversation with Mr. Murphy indicated that he did not follow up on this recommendation.” * * * Dr. Tillim sums up his opinion of the question in the following allegation in his affidavit (fol. 80): “Upon these findings and my own observations, it is my opinion that the petitioner is a poor risk and should not be qualified as a patrolman.” The President of the Municipal Civil Service Commission, Paul P. Brennan, states with respect to the action taken by the Commission, the following (fol. 65): “The action of the respondents in marking the petitioner ‘not qualified and revoking his certification and the action of the Police Commissioner in terminating petitioner's probationary appointment were taken in the interest of public safety and were justified by the findings of the medical experts.” The scope of the investigation that was made into petitioner's mental condition completely negatives his assertion that the respondents acted arbitrarily or capriciously. The investigations and examinations conducted by the respondents are convincing evidence of their good faith in seeking to make a fair determination with respect to petitioner's right to be trusted with the responsibilities of a police officer. Since there is this evidence of good faith on the part of the respondents their determination should not be disturbed. The necessity for not relaxing care in the conduct of such investigations is indicated by the decisions in Matter of Opperman v. Williams, 280 App. Div. 774 (1st Dept., 1952) and Restraino v. City of New York, 185 Misc., 1027 (App. Term, 2nd Dept., 1945). In the Opperman case the Commissioner of Corrections was charged with having acted arbitrarily and capriciously because he insisted in filing an application for the compulsory retirement of Opperman on a pension on the ground that his state of emotional instability made his continuance in service as a prison guard an unnecessary risk. Opperman was able to produce medical testimony that he was not psychotic and that he could be gainfully employed. The Court at Special Term ruled nevertheless that the compulsory retirement of Opperman was not arbitrary and this Court affirmed without opinion. In the Restraino case, supra, the City of New York was sued in negligence for the acts of a police officer on the ground that (185 Misc., 1028) “the Municipal Civil Service Commission * ** did not discover during its examination and investigation of the police officer before his appointment that he had been committed to a hospital for the insane in another state thirteen years before.” Recovery was denied chiefly on the ground that the City is not responsible for the acts of the Municipal Civil Service Commission and in part on the ground that (185 Misc., 1029), “No prior experience of the commission or city which should have dictated further inquiry appears in this record.” In the present case, the Police Commissioner is a party defendant and there is evidence of “prior experience” to warrant the action taken herein. |