Nash v. Brooks

• Decision Date: 23 November 1937
• Citation: 11 N.E.2d 545,276 N.Y. 75
• Court: New York Court of Appeals Court of Appeals
• Parties: NASH v. BROOKS et al.

276 N.Y. 75

11 N.E.2d 545

NASH

v.BROOKS et al.

Court of Appeals of New York.

Nov. 23, 1937.

Proceeding in the matter of the application of Edward M. Nash for a certiorari order against Paul B. Brooks and others, individually and as members of and constituting the Medical Board of the New York State Employees' Retirement System, and another. From an order of the Appellate Division (251 App.Div. 619, 297 N.Y.S. 857) annulling on the law and facts a determination of the New York State Employees' Retirement System, and from an order of the Appellate Division (251 App. Div. 616, 297 N.Y.S. 853) reversing an order of the Special Term which vacated a certiorari order, the defendants appeal.

Former order modified in accordance with opinion; latter order affirmed. Appeal from Supreme Court, Appellate Division, Third Department.

John J. Bennett, Jr., Atty. Gen. (Joseph M. Mesnig, of Albany, of counsel), for appellants.

John J. Donohue, of Albany, for respondent.

HUBBS, Judge.

Petitioner made application for a certiorari order to review a determination of the Medical Board of the New York State Employees' Retirement System and the New York State Retirement System, by which determination the board decided that petitioner was ineligible for a retirement allowance based upon an alleged accidental injury. The certiorari order was granted ex parte at Special Term and later vacated. Petitioner appealed to the Appellate Division from the Special Term order vacating the certiorari order and, a return having been made in the meantime, that court heard the appeal from the order which vacated the certiorari order and at the same time heard the certiorari on the merits. It reversed the order of the Special Term vacating the certiorari order and decided on the merits that the determination of the Medical Board as to ineligibility of the petitioner for a retirement allowance because of such alleged injury should be annulled and remitted the matter to the New York State Employees' Retirement System with a direction to disregard the findings of the Medical Board to the effect that petitioner's incapacity was not the result of an accident and to grant a retirement allowance, based on the findings of the State Industrial Board, dated January 27, 1936, pursuant to which a compensation award had previously been made to petitioner.

The petitioner, who is a member of the New York State Employees' Retirement System, at the time of the alleged accident was, and for several years prior thereto had been, in the employ of the State Insurance Fund as a medical examiner. On June 3, 1935, he was examining a patient in the office of the State Insurance Fund and, while assisting the patient to arise from the examining table, felt a sharp, sticking pain in the chest and neck, was unable to breathe, and collapsed. Claiming such accident to have caused angina pectoris, he filed a claim under the Workmen's Compensation Law (Consol.Laws, c. 67). The Industrial Board, on January 27, 1936, found that the accident caused the attack and arose out of an in the course of the employment. It made an award covering the period from June 3, 1935, to January 3, 1936, and ordered a continuation pending an examination by an expert as to whether the disability, if any, thereafter was temporary or permanent, partial or total. On June 19, 1936, petitioner applied to the New York State Employees' Retirement System for accidental disability retirement, pursuant to the provisions of chapter 741 of the Laws of 1920, and amendments thereto. Civil Service Law (Consol.Laws, c. 7), art. 4 (section 50 et seq.). The application was referred to the Medical Board of the system, pursuant to section 65 of that law, which provides: Ԥ 65. Accidental disability retirement. Medical examination of a member under sixty years of age in service for accident disability and investigation of all statements and certifications by him or on his behalf in connection therewith shall be made upon the application of the head of the department in which said member is employed, or upon the application of said member or a person acting in his behalf stating that said member is physically or mentally incapacitated for the performance of duty as a natural and proximate result of an accident sustained in service as a member and certifying the time, place and conditions of such service performed by said member resulting in such alleged disability, and that such alleged disability was not the result of wilful negligence on the part of said member and that said member should therefore be retired. * * * If such medical examination and investigation show that the said member is physicallyor mentally incapacitated for the performance of service as a natural and proximate result of an accidental injury received in such service while a member and that such disability was not the result of wilful negligence on the part of said member and that such member should be retired, the medical board shall so certify to the comptroller, stating the time,...