256 A.D. 444, Erlanger v. Regents of University of State of New York

Citation:256 A.D. 444, 10 N.Y.S.2d 1013
Party Name:In the Matter of the Application of PAUL ERLANGER, Petitioner, Respondent, Appellant, v. THE REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK and Others, Appellants, Respondents. [a1] In the Matter of the Application of JULIUS LEVI, Petitioner, Respondent, Appellant, v. THE REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK and Others, Appellants
Case Date:March 08, 1939
Court:New York Supreme Court Appelate Division, Third Department
 
FREE EXCERPT

Page 444

256 A.D. 444

10 N.Y.S.2d 1013

In the Matter of the Application of PAUL ERLANGER, Petitioner, Respondent, Appellant,

v.

THE REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK and Others, Appellants, Respondents. [a1] In the Matter of the Application of JULIUS LEVI, Petitioner, Respondent, Appellant,

v.

THE REGENTS OF THE UNIVERSITY OF THE STATE OF NEW YORK and Others, Appellants, Respondents. [a1]

Supreme Court of New York, Third Department.

March 8, 1939

Page 445

CROSS-APPEALS in each of the above-entitled proceedings from an order of the Supreme Court, entered in the office of the clerk of the county of Albany on the 15th day of October, 1938.

COUNSEL

Mariash & McAuliffe [Irving Mariash of counsel], for the petitioner.

Ernest E. Cole [Charles A. Brind, Jr., of counsel], for the defendants.

HEFFERNAN, J.

The appeals in these two proceedings involve the same questions, the causes were argued together and hence will be decided simultaneously.

In 1937 both petitioners passed an examination in English for foreigners and both applied for admission to the January, 1938, medical licensing examination. These requests were granted. In the case of petitioner Erlanger he received a passing mark in but two of the nine subjects in which he was examined. In the case of petitioner Levi he failed to receive a passing mark in a single subject. Erlanger was admitted to the September, 1938, examination and as a result he received a passing mark in four out of the nine subjects.

Subsequently to the January, 1938, examination both petitioners presented to the Board of Regents applications for the indorsement of their German medical licenses and on May 20, 1938, that body denied such applications 'because the evidence submitted * * * is not satisfyingly sufficient to warrant such indorsement, but that such denial shall be without prejudice to the right of the applicants to continue taking the medical licensing examinations.'

Both petitioners then applied to the court at Special Term for an order under article 78 of the Civil Practice Act to compel the Board of Regents to indorse their foreign medical licenses without requiring them to take medical examinations pursuant to the provisions of subdivision 3 of section 51 of the Education Law. They asserted that the Regents in denying their applications did not consider the evidence presented. That contention cannot be sustained. When they applied for permission to take the medical examination they submitted their credentials and were rated by the Department of Education for the purpose only of admission

Page 446

to the examination as 'four years of approved medical study.' Neither their applications for the indorsement of their foreign licenses nor the supporting evidence was before the Regents at that time. These documents, however, were before the Regents when they made their decision on May twentieth denying the applications.

After hearing the parties the Special Term determined that questions of fact relating to the qualifications of petitioners were involved which should be tried at a Trial Term of the court. From that determination all parties have appealed to this court.

Whether the court at Special Term followed the proper procedure in taking jurisdiction of the issues presented or whether the matter should have been referred to this court in the first instance is not now of much importance. It is conceded that there is no triable issue of fact presented and no basis for the orders under review directing a trial of such issues. To uphold the ruling of the Special Term would mean a trial before the court either with or without a jury where either side would have the right to produce such evidence as it deemed relevant and material in order that it might be adjudicated whether or not the determination of the Regents should be sustained. That would result in a review of the decision of the Regents not on the evidence before that tribunal but on entirely new proof. There is no warrant in law for such procedure.

According to our view the sole issue before the court in these proceedings is whether or not the action of the Regents in denying petitioners' applications was arbitrary, unfair or capricious.

The pertinent provisions of subdivision 3 of section 51 of the Education Law, under which the petitioners are proceeding, are: '3. And the Regents shall have further power to indorse a license issued by a legally constituted board of examiners in any other State or country upon satisfactory evidence that the requirements for the issuance of such license were substantially the equivalent of the requirements in force in this State when such license was issued, and that the applicant has been in the lawful and reputable practice of his profession for a period of not less than five years prior to his making application for such indorsement. When the evidence presented is not satisfyingly sufficient to warrant the indorsement of such license, the Board of Regents may require that the candidate for indorsement shall pass such subjects of the licensing examination specified by statute or Regents' rule as should be required of the candidate to establish his worthiness to receive such indorsement.'

The obvious purpose of the statute was to permit the Board of Regents to indorse a license issued by the licensing board of another

Page 447

State or country in those cases in every profession in which the applicant is unable to meet the letter of the requirements of the statute governing admission to the profession in which a license is sought but possesses essentially the same or equivalent qualifications necessary for a license. The power herein granted is a limited one, remedial in its nature, and must be exercised by the Regents with caution and with due regard to the statutes regulating the practice of medicine in this State. Certainly the Regents may not through the exercise of the power granted by this statute indiscriminately indorse foreign medical licenses. The Legislature has provided a way for these applicants to practice medicine. It was never intended that they should be allowed to enter by indorsement...

To continue reading

FREE SIGN UP