Slattery v. Board of Estimate & Apportionment

*348 Crouch, J. The petitioner’s husband was Deputy Chief Engineer of the Board of Transportation of the City of New York, engaged in the construction and operation of its city-owned subway. He died September 23, 1932, of a heart ailment which, it is claimed, was the natural and proximate result of an accident sustained from manhandling by a crowd on the occasion of the opening of the subway, September 9, 1932. Petitioner filed a claim with the Board of Estimate and Apportionment for an accidental death benefit under the provisions of the city charter relating to the Employees’ Retirement System, of which the deceased was a member. Section 1718 of the charter (Greater New York Charter, Laws of 1901, ch. 466, as amd.), authorizing such benefit, is as follows: “ Upon the accidental death of a member before retirement, provided that evidence shall be sub *349 mitted to the board of estimate and apportionment proving that the death of such member was the natural and proximate result of an accident sustained while a member and while in the performance of duty at some definite time and place and that such death was not the result of willful negligence on his part, bis accumulated deductions shall be paid to his estate, or to such person as he has nominated or shall nominate by written designation, duly acknowledged and filed with the board of estimate and apportionment; and, upon application by or on behalf of the dependents of such deceased member, the board of estimate and apportionment shall grant a pension of one-half of the final compensation of such employee (a) to his widow, to continue during her widowhood,” etc. Section 1719 provides that workmen’s compensation benefits to a member of the retirement system be subtracted from the amount otherwise payable for the same disability to members of the system. The Board of Estimate and Apportionment accordingly advised the petitioner to take the necessary proceedings before the Industrial Board, to establish her claim for workmen’s compensation. She did so, proceeding against the Board of Transportation as employer, and the city of New York as insurer. Hearings were had, in which the claim was contested by the Corporation Counsel, and an award was made in her favor, which was appealed and affirmed. The Industrial Board found, as necessary under the Workmen’s Compensation Law (Cons. Laws, ch. 67), that the death of the deceased was occasioned by accidental injuries arising out of and in the course of his employment. The Medical Board, designated by section 1705 of the charter to report its conclusions and recommendations to the Board of Estimate and Apportionment, as head of the retirement system, disagreed with the conclusion as to accidental death. The Board of Estimate indorsed its recommendations, denied an accidental death benefit to petitioner, but awarded her an ordinary death benefit. *350 The question, on this appeal is whether the determination of the Industrial Board in the compensation proceedings is conclusive on the Board of Estimate and Apportionment, as head of the retirement system, on principles of res adjudícala, or otherwise. To a large degree the issues presented in proceedings under the Workmen’s Compensation Law and the retirement provisions are alike. There is no substantial difference to be perceived between “ accidental injury ” under the former, and “ the natural and proximate result of an accident ” under the latter. There are perhaps some technical differences; for example, the requirement under the Compensation Law that the injury arise “ out of and in the course of ” employment (§ 2, subd. 7), as contrasted with “ in the performance of duty,” under the retirement provision (Cf. Matter of Connelly v. Samaritan Hospital, 259 N. Y. 137; Fitzgerald v. Clarke & Son, [1908] 2 K. B. 796, 799), and the exception in the Compensation Law of injuries “ solely occasioned by intoxication * * * or by willful intention of the injured employee to bring about the injury or death of himself or another ” (§ 10), contrasted with the exception in the retirement provisions of injuries occurring through the “ willful negligence ” of the member. ■ The contrasted provisions, however, are in every instance narrower in the Compensation Law requirements than in the retirement provision. Cases may be postulated where injuries might not be covered by the compensation statute, and still be within the terms of the retirement provisions. No case can be put which falls within the requirements of the Compensation Law and not within the broader scope of the retirement provisions. While the statutory provisions are not identical, an adjudication in favor of a claimant in compensation proceedings, so far as we can see, includes an adjudication that all the factors are present in the case which go to make a valid claim for accidental death benefits under the retirement act. *351 The purpose of the two statutes, broadly speaking, is identical. That to the legislative mind there was also substantial identity of subject-matter and remedy appears clearly from the provisions of the Civil Service Law kindred to those in the city charter. (Civil Service Law, §§ 65-a, 67, Cons. Laws, ch. 7.) It seems apparent that in almost all instances of accidental injury, the same issues were deemed to be involved where an employee was covered by both the Compensation Law and the retirement system; and the Industrial Board was the forum specifically assigned in such cases to adjudicate them. (Civil Service Law, § 67.) The practice under the city charter seems to have been the same. All considerations of orderly administration and finality demand that there should be but one trial of the same issues, and we think that was the legislative intent. Conceivably, as we have said above, there may arise instances where an employee is covered by the broad provisions of the retirement law and not by those of the Compensation Law. In such instances the rule of finality would not apply. This is not one of those instances, and we think the rule does here apply. Moreover, under the circumstances of the litigation, we might even go further. Petitioner was instructed by the Board of Estimate to initiate her claim by proceedings before the Industrial Board. The Board of Estimate thus had notice of this proceeding in its capacity as head of the retirement system, and was in a manner a party thereto and entitled to defend. Upon familiar principles the system is bound by the result. (Lovejoy v. Murray, 3 Wall. [U. S.] 1; Souffront v. La Compagnie des Sucreries, 217 U. S. 475.) The order should be affirmed, with costs.