author: Van Voorhis, J. Dye, J. (dissenting).

text:
    In the Matter of the Claim of Bertha Miller, Respondent, against National Cabinet Company et al., Appellants, and Michigan Mutual Insurance Company, Respondent. Workmen’s Compensation Board, Respondent.
    Argued April 27, 1960;
    decided July 8, 1960.

      Benedict T. Mangano and La Verne G. Lewis for appellants.
    I. There is no substantial evidence to sustain the finding that Jacob Miller died as a result of an occupational disease due to exposure to or contact with benzol. (Matter of Wilson v. General Motors Corp., 298 N. Y. 468; Matter of Riehl v. Town of Amherst, 308 N. Y. 212; Matter of Kopec v. Buffalo Brake

      Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65; Bye v. State Ins. Fund, 279 App. Div. 1105; Matter of Schechter v. State Ins. Fund, 6 N Y 2d 506.) II. It was error to apportion the award between two successive carriers of a single employer. (Matter of Strauss v. Waldenberg, 240 App. Div. 795; Matter of Levine v. Spector, 241 App. Div. 783; Matter of Daley v. Miner Lithographing Co., 262 N. Y. 542; Matter of Lanzetta v. Allied Decorating Co., 287 N. Y. 570; Matter of Commissioner of Taxation & Finance v. Nu-Art Adv. Co., 271 N. Y. 112; Matter of Larkow v. Standard Mirror Co., 251 App. Div. 762; Matter of Lanzetta v. Allied Decorating Co., 261 App. Div. 861; Matter of Trimboli v. Ford Instrument Co., 271 App. Div. 854; Matter of Bahry v. Nu-Glamore Beauty Salon, 4 A D 2d 351.) III. The reversal by the board, without a clear showing of error, of the decision of the Referee which was clearly supported by a preponderance of the evidence was arbitrary and capricious. (Universal Camera Corp. v. Labor Bd., 340 U. S. 474; Minneapolis Honeywell Regulator Co. v. Federal Trade Comm., 191 F. 2d 786; Ohio Associated Tel. Co. v. National Labor Relations Bd., 192 F. 2d 664; United States Steel Co. v. National Labor Relations Bd., 196 F. 2d 459; Matter of Gray v. Williams Press, 4 A D 2d 920; Matter of Rogers v. Rich Co., 8 A D 2d 555; Westinghouse Elec. Supply Co. v. National Labor Relations Bd., 196 F. 2d 1012; Matter of Rumsey Mfg. Corp. [Corsi], 296 N. Y. 113; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65; Matter of McCormick v. National City Bank, 303 N. Y. 5; Matter of Zaepfel v. du Pont de Nemours & Co., 284 App. Div. 693, 309 N. Y. 962.)

      Morgan F. Bisselle and Warren C. Tucker for Michigan Mutual Insurance Company, respondent.
    Upon the facts of this case the board properly apportioned the award between the two insurance carriers. (Matter of Strauss v. Waldenberg, 240 App. Div. 795; Matter of Levine v. Spector, 241 App. Div. 783; Matter of Larkow v. Standard Mirror Co., 251 App. Div. 762; Matter of Lanzetta v. Allied Decorating Co., 261 App. Div. 861, 287 N. Y. 570; Matter of Trimboli v. Ford Instrument Co., 271 App. Div. 854; Matter of Lane v. Daystrom Corp., 276 App. Div. 247, 300 N. Y. 761; Matter of Commissioner of Taxation & Finance v. Nu-Art Adv. Co., 271 N. Y. 112.)

      Louis J. Lefkowitz, Attorney-General (Roy Wiedersum, Paxton Blair and Henriette Frieder of counsel), for Workmen’s Compensation Board, respondent.
    I. Substantial evidence sustained the finding of the Workmen’s Compensation Board that Jacob Miller died from the occupational disease of leukemia resulting from exposure to or contact with benzol in his employment. The issue raised by appellants involves a question of fact and the Appellate Division has so ruled. (Matter of Zaepfel v. du Pont de Nemours & Co,, 284 App. Div. 693, 309 N. Y. 962; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Green v. Geiger, 253 App. Div. 903, 280 N. Y. 610; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65; Matter of McCormick v. National City Bank, 303 N. Y. 5; Matter of Gioia v. Courtmel Co., 283 App. Div. 40, 306 N. Y. 985; Matter of Bastian v. General Drop Forge Corp., 1 A D 2d 863; Matter of Commissioner of Taxation & Finance v. Nu-Art Adv. Co., 271 N. Y. 112.) II. The contention of appellants that the reversal of the ¡Referee’s decision by a board panel was arbitrary and capricious not only is raised improperly for the first time in this court but, in any event, is totally lacking in merit. The preponderance of evidence rule is not applicable. (Matter of Burmester v. DeLucia, 263 N. Y. 315; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65; Universal Camera Corp. v. Labor Bd., 340 U. S. 474; Matter of Rumsey Mfg. Corp. [Corsi], 296 N. Y. 113; Matter of Daus v. Gunderman & Sons, 283 N. Y. 459; Matter of Stork Restaurant v. Boland, 282 N. Y. 256; People ex rel. Consolidated Water Co. of Uticav. Maltbie, 275 N. Y. 357; Labor Bd. v. Waterman S. S. Corp., 309 U. S. 206; Ohio Associated Tel. Co. v. National Labor Relations Bd., 192 F. 2d 664; Bond Crown & Cork Co. v. Federal Trade Comm., 176 F. 2d 974.)
   Van Voorhis, J.

An award in workmen’s compensation has been made to the widow of Jacob Miller, who died on August 10, 1950. He was last employed by a firm known as Krakauer Bros, where he had worked from January 31, 1949 to April 23, 1950, except for an absence of about five months due to a back injury consisting of a fractured vertebra. He received disability payments during this interval based on the certificate of his personal physician, Dr. Louis Granirer, that this injury resulted from moving a piano while at work. After he died, his widow filed a claim against Krakauer Bros, for death benefits based on the theory that his death was caused by this fractured vertebra. Dr. Granirer refused to support that claim, certifying to the Workmen’s Compensation Board that in his opinion the industrial accident mentioned did not cause his death. That claim was superseded by another based on the theory “that decedent’s death may have resulted from an occupational disease, having been employed as a piano finisher and associated work for many years prior to his death.”

This man died from leukemia. He had worked as a piano or cabinet finisher for five different employers since 1928. A list of these employers was attached to the last-mentioned claim, and they were vouched into the proceeding. One of them was appellant National Cabinet Company. The theory of claimant became that the blood disease from which he died was caused by exposure to a chemical known as benzene—whose trade name is benzol -—which was contained in varnish removers utilized by each of the employers for whom he worked during this quarter of a century of his career.

The Referee who heard this workmen’s compensation proceeding called in an associate industrial hygiene physician of the Division of Industrial Hygiene and Safety Standards, New York State Department of Labor, to whom he issued the following direction: “It may be that substances used in one or more of these employments were injurious and causative factors in the death * * *. Will you please investigate and let me know what substances were used and whether or not you believe such substances were injurious.”

After executing this assignment, Dr. McBirney reported: “ As this disease is one in which there is no known cause, and there are no substances used in any of these work places which produce symptoms and signs similar to the signs and symptoms of this leukemia—an investigation is not able to disclose any causal relation.”

Dr. Granirer, decedent’s personal physician for 8 years who attended him at his death, was called as a witness for claimant, but declined to express an opinion that the leukemia resulted from his employment. Dr. Angrist, pathologist at the Queens General Hospital of the Department of Hospitals of the City of New York, on whose report the diagnosis of leukemia was made, testified that leukemia of this kind varies from a few days to 23 years in producing death, is a cancerous process of the white cells of the blood and that he has no idea what factors prolong or shorten its duration. The Referee disallowed the claim, finding that it had not been established that death was due to the back injury sustained in moving a piano or to exposure to benzene. The Workmen’s Compensation Board reversed the Referee, finding:" That decedent developed leukemia as the result of work exposure to benzol during his employment with National Cabinet Company, that this was a slow starting disease within the provisions of Section 40 of the Workmen’s Compensation Law and that death resulted therefrom. We further find that the claim for death benefits was timely filed and that evidence does not establish any prior exposures that contributed to the fatal condition.”

The board recognized in this manner that it could not find for the claimant against any employer for whom the decedent worked earlier than National Cabinet Company without running afoul of the five-year Statute of Limitations prescribed by section 40 of the Workmen’s Compensation Law. It is not clear on what principle except the Statute of Limitations the other employments were excluded, where claimant testified that her deceased husband had done the same kind of work,since 1928. There was nothing to indicate when he contracted leukemia except its onset in 1950. The board seems to have acted on the assumption that causality was established against any one of these employers in whose favor the statute had not run unless it proved that the disease was contracted somewhere else, and to have ignored the affirmative evidence that, if this was an occupational disease, it was just as probable that he contracted it under other employers where the working conditions were _ substantially the same.

An equally serious defect in claimant’s case is that the causes of leukemia or its aggravation are unknown. This clearly appears from the testimony of claimant’s witness, Dr. Angrist, of the New York City Department of Hospitals, of Dr. McBimey, of the State Labor Department who was called by the Compensation Referee, and from the eloquent silence of decedent’s own physician. Whatever case claimant might have would depend entirely upon the testimony of Dr. Paul Reznikoff, who had no contact with the deceased, and was called as an expert witness to answer hypothetical questions. This witness distinguished, as did all of the other medical witnesses, between leukemia and aplastic anemia, which was the disease involved in our decision in Matter of Zaepfel v. du Pont de Nemours & Co. (284 App. Div. 693, affd. 309 N. Y. 962). Aplastic anemia is the classical case of benzol poisoning, which gave rise to section 3 (subd. 2, par. 8) of the Workmen’s Compensation Law, implemented by the presumption supplied by section 47. Zaepfel did not die from cancer of any kind. He did not have leukemia. The statutory protection against benzol poisoning, a long-established industrial occupational disease, has no application to the facts of this case. Aplastic anemia is not leukemia. Indeed, there is testimony by Dr. Beznikoff himself that the effect of benzol is to reduce rather than to increase the number of white corpuscles, and that it has sometimes been injected as an antidote to leukemia, which consists of the uncontrolled multiplication of white blood corpuscles.

Dr. Beznikoff was guarded and hesitant about expressing any opinion concerning exposure to benzol as a cause of leukemia. He testified that he believes that a person exposed to benzol may develop this kind of leukemia. He said that nobody knows how much exposure it takes. The award depends entirely upon his statement that the incidence of leukemia ‘ ‘ is quite high in patients who have been exposed to benzol’’, and that “it is possible that this man’s leukemia resulted from his alleged exposure to inhalation of benzol or benzene

This lack of positiveness is no doubt commendable, as Judge Dye indicates, in expressing an opinion about the cause of a disease which is conceded to be unknown to medical science. It is true that the interjection by an expert witness of words like “ could produce ”, “ it is possible ” or similar expressions does not of itself destroy the probative force of the testimony if, as the Appellate Division said in Zaepfel, his opinion evidence is ‘ ‘ fortified by detailed explanation and other facts in the record which add to its reasonableness and probable correctness ” (284 App. Div. 693, 696, supra). The probative force of an opinion is not to be defeated by semantics if it is reasonably apparent that the doctor intends to signify a probability supported by some rational basis. Dr, Beznikoff made crystal clear, however, that, when he used the word “ possible ” in answering the hypothetical question, he meant that and nothing more. He demonstrated this beyond peradventure when he was asked on cross-examination what made him feel that this decedent’s disease resulted from the cause mentioned, by replying: “I didn’t say that. I was asked whether this could follow benzol. I didn’t say this particular man had it”. (Italics supplied.) Asked whether this particular disease could have had its- cause outside of any employment exposure, Dr. Beznikoff replied: As I answered the previous attorney, most of the patients that we do see with this disease, we never find out a reason for it with any certainty.”'

General expressions of opinion in relation to cause and effect are permitted to a medical witness only where they are directed to showing that the condition of the particular plaintiff or claimant was such as to indicate that it was occasioned by the injury or injurious exposure claimed (Cole v. Fall Brook Coal Co., 159 N. Y. 59). This admission by Dr. Beznikoff that he was not testifying whether the leukemia of this decedent was caused by exposure to benzol nullifies any inference that could possibly be drawn in favor of claimant. His testimony thus loses “ * all probative force when supplemented and explained ’ ” by the testimony which he gave upon cross-examination (Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65, 71; Matter of Riehl v. Town of Amherst, 308 N. Y. 212).

Nobody contends that there is scientific understanding of the cause of this leukemia. The only possible basis for drawing an inference in favor of claimant from Dr. Beznikoff’s evidence, even if he had not cancelled it by saying that he was not speaking of this decedent, would be statistics indicating that in many instances leukemia follows benzol exposure without knowing why. It was along this line that Dr. Beznikoff began to testify that the incidence of leukemia is quite high” in patients who have been exposed to benzol. This line of testimony might have led to something had not the doctor added “I am sorry I can’t give you any statistics, but we don’t have them.”

Not every supposition of a witness concerning what might be has the force of evidence, even though he has been licensed to practice medicine. If the witness is unfamiliar with any statistical data in the medical literature or in his own practice to give an inkling either to himself or to the court or board of how high the incidence of these cases is in situations of this kind, then the doctor’s assumption that it is “ quite high ” is without significance. The lack of any kind of statistical data, which in the absence of scientific understanding is all that there would be to go on, is the more inexplicable if the claim is well founded in view of the large number of persons who die of leukemia and of workers in industry who are exposed to benzol. If there were any observed correlation between the two, it is certain that a physician of Dr. Reznikoff’s standing would be in possession of the information.

Probably for this reason it has been written by Dr. W. C. H. Hueper, Chief of the C'ancerogenics Section of the National Cancer Institute of the United States Department of Public Health, that, whatever his individual predilection may be, “ At present, no country has officially recognized benzol leukemia as a compensable occupational disease. Several countries include aplastic anemia and related conditions caused by occupational exposure to benzol among this class of industrial disorders ” (Occupational Tumors and Allied Diseases, 1942, p. 599). This statement takes note of the fact, as do all of the medical witnesses in this case, that leukemia and aplastic anemia are different diseases. This distinguishes Matter of Zaepfel v. du Pont de Nemours & Co. {supra) which involved only the latter.

It is not customary, to be sure, to hold doctors to the strictness in testifying that was once required provided that it can be perceived that they are testifying with some reasonable degree of medical certainty. The form of the answers is less important than the context and background. Nevertheless, there must be some evidence of a basis for the opinion, and the acceptance in one case of the ‘ ‘ possible ’ ’ as meaning reasonable medical certainty does not justify treating every “possibility” as though it were enough to establish the facts sought to be proved. In the training of a scientist anything conceivable is a possibility. That is the first tenet accepted by the scientific mind. Many of the scientific discoveries and applied technologies today would have been thought by the average person to have been impossible of attainment less than a generation ago. No trained scientist, medical or other, would have the effrontery to state today that space travel is impossible, that the discovery of a cure for leukemia or other forms of cancer is impossible, or that any other speculation is dogmatically beyond the realm of knowledge or accomplishment. Still that' would not justify a court in assuming that it is presently known or is presently achievable merely for the reason that a trained scientist has said that it is not impossible. We have to look at the background of the evidence, as was indicated in the opinion of the Appellate Division in the Zaepfel case.

Here not only does the employer-carrier’s expert deny causation, it is also denied or not affirmed by the decedent’s family physician, the pathologist of the New York City Department of Hospitals and the physician called in by the Compensation Eeferee himself from the Bureau of Industrial Hygiene of the Department of Labor. The latter two testified against the claimant’s position. The family physician was called but was not asked to testify to the cause, of the fatal disease. The medical witness on whom claimant depends confined himself to generalties and declined to be committed on whether this man died from exposure to benzol.

The courts have been confronted before with cancer cases, and this is not likely to be the last. This is not an isolated situation. Questions of causation are common to actions based on warranty, tort or workmen’s compensation proceedings (cf. Matter of Riehl v. Town of Amherst, 308 N. Y. 212, 217-218, supra). Would, for example, evidence that there are 4 to 11 times as many cases of lung cancer among cigarette smokers as among nonsmokers (Journal of National Cancer Institute, April, 1953, pp. 1237-1257) be sufficient to establish a cause of action for breach of warranty in the sale of cigarettes? The United States District Court in Pittsburgh has apparently held not (Pritchard v. Liggett & Myers Tobacco Co. [Miller, J.], decided May 3, 1960). There appear to be no decisions upholding causation in so complex a variety of the disease as leukemia. The cancer decisions in the courts where recovery has been allowed have dealt almost entirely with trauma, and there only in instances where the trauma occurred in the spot in the body where the pre-existing cancer was and the symptoms of its aggravation were immediately apparent (e.g., in compensation cases, Matter of Roth v. Curtiss-Wright Corp., 269 App. Div. 916; Matter of Avesato v. Morrell-Brown, 7 A D 2d 796; Whittle v. National Aniline & Chem. Co., 266 Pa. 357; Lucas v. Haas Coal Co. 118 Pa. Super. Ct. 182; Atlantic Coast Line R. R. Co. v. Brown, 82 Ga. App. 889—under the Federal Employers’ Liability Act, in Charleston Shipyards v. Lawson, 227 F. 2d 110-—in negligence actions, Dalgleish v. Oppenheim Collins & Co., 302 Pa. 88; Smith v. Primrose Tapestry Co., 285 Pa. 145; Winchester Milling Corp. v. Sencindiver 148 Va. 388). In all of those cases the immediacy of the symptoms of aggravation of the cancer by a traumatic injury suffered in the area where the cancer was located was accepted as a substitute for scientific evidence or understanding of cause and effect. Absent that, damage claims of this nature have been dismissed on the law for lack of evidence of causation (Sikora v. Apex Beverage Corp., 282 App. Div. 193, affd. 306 N. Y. 917; Dennison v. Wing, 279 App. Div. 494). In the Sihora case it was written for the unanimous Appellate Division by Peck, P. J.: “ In the absence of a direct blow to the site of the cancer or spreading into surrounding areas, there is no adequate basis for believing that the growth of the cancer was in any way affected or accelerated by plaintiff’s fall ” (p. 197). The dismissal of the complaint was unanimously affirmed (306 N. Y. 917).

Fracture of the left clavicle and contusion of the left shoulder and upper chest was likewise held to be insufficient to establish aggravation of breast cancer in Dennison v. Wing (279 App. Div. 494, supra). The court said, again per Peck, P. J., that the ‘ ‘ cancer must develop exactly at the site of the injury ’ ’ (p. 496). The quandary which confronts a plaintiff or claimant in this type of case regarding the time factor was thus described. The type of cancer here involved was a very slow growing cancer. Plaintiff relies- on that fact to account for the lapse of three and one-half years between the accident and the development of the cancer and as the .explanation of why in the intervening three and one-half years she never called the breast pimple from which the cancer developed to the attention of any doctor. Nevertheless, in an attempt to connect the cancer more proximately with the accident, plaintiff placed the discovery of the pimple from which the cancer grew at a time only two months after the accident * * *. We are satisfied that the breast cancer, from which plaintiff unfortunately suffered was not caused by the accident. ’ ’ (p. 497). A workmen’s compensation award was set aside and the claim dismissed in Schapiro v. Wanamaker (197 App. Div. 810, 814), one of the grounds for dismissal being that the breast cancer was not brought to light until seven months after the claimant pulled out a drawer which fell on her breast. There, as here, a medical expert for claimant testified to the effect that ‘ ‘ there is a certain amount of evidence that cancer may follow ’ ’, but like Dr. Reznikoff he disclaimed any scientific knowledge of the nature of the cause.

A compensation award was affirmed without opinion in Vanderslice v. Young (235 N. Y. 574). The syllabus shows the facts there to have been that an infected hand resulted in general blood poisoning which spread up the side of claimant to his arm pit, and reached the deep cervical glands under the right clavicle, near the thoracic duct. Cancer was manifested in these glands Immediately after they were reached by the infection, which spread to the tongue and tonsils, resulting in an operation two months later, followed a month after that by a hemorrhage from which he died.

An interesting case in an intermediate appellate court in California is Hagy v. Allied Chem. & Dye Corp. (122 Cal. App. 2d 361), where a woman was allowed to recover against a manufacturer of sulphuric acid for the aggravation of cancer of the larynx as a result of driving in an automobile through dense smog. The smog was so thick that she lost consciousness, and after she had been revived the evil effects of the cancer of the larynx became immediately apparent. In all of the decisions; where recovery has been allowed, the cancerous condition has been manifested immediately after the occurrence on which liability has depended. In the present case, the onset of leukemia did not occur until several years after his employment by appellant had ended.

We recognize that the scientific repugnance to the principle of “post hoc, ergo propter hoc’’ cannot fully extend to the law, and that, as in cases of circumstantial evidence, we regard as proof that which would be rejected by the scientist. Nevertheless, there comes a point even in legal thinking where the relationship of cause and effect becomes too attenuated to be regarded (Laidlaw v. Sage, 158 N. Y. 73). An illustration of the correct legal approach to the problem is found in Stubbs v. City of Rochester (226 N. Y. 516) where the cause of disease was reached by process of elimination of other causes.

In the case at bar, causation has not been established. This is true not only on account of the considerable number of past employers of the decedent, engaged in the same operations where he was exposed to the same hypothetical dangers, without any clear showing that he contracted this disease while at National Cabinet Company but, even more importantly, for the reason that without any scientific evidence of causation there is likewise an absence of any statistical basis for opinion based on post hoc, ergo propter hoc, as claimant’s physician admits, and as is clearly apparent. The speculative nature of Dr. Reznikoff’s conclusions, appearing from his own testimony, and in the face of the testimony of all of the other doctors on both sides of the case, renders the result reached too conjectural for recognition in a court of law. The probative force of an immediately grievous aggravation of a cancerous condition by trauma or some other agent is totally absent in this ease. Here, in. addition to the other weaknesses in claimant’s case, is a long lapse of time before leukemia was discovered after he had ceased to work for appellant employer. In testifying that leukemia can develop over a period of 20 years, Dr. Reznikoff did not recognize that an immediately observable aggravation is the only proof of causation that exists in the legal cases that have been decided.

In 1927 it was said by the Supreme Court of Appeals of Virginia (Winchester Milling Corp. v. Sencindiver, supra, p. 399): Courts have in general found no difficulty * * * in applying the ordinary rules of evidence, and in drawing conclusions of cause and effect from established facts * * *. This, we doubt not, courts will continue to do with a full sense of justification and without apology until the cause of cancer is definitely and scientifically established.”

If what this statement means is that the courts will not in all instances demand scientific demonstration of cause and effect relationships bnt will insist only on practical probability, it is correct. But if it is to be used as a fulcrum to establish a rule that a question ©f fact arises whenever a medical expert testifies in measured terms that an asserted cause of a disease is possible, then it is erroneous. Otherwise for so long as the causes of a disease — like cancer — are unknown to science, everyone contracting the disease could secure medical testimony that it is possible ” that the disease is contracted from a wide variety of causes, choosing in each instance the particular possibility having the greatest promise of holding liable some responsible defendant. Any cancer expert could readily state that cancer could be caused by virus infection or by exposure to automobile exhaust fumes, sunlight, radiation, smog, smoking, hormone imbalance or according to any other theory which has been entertained by researchers or specialists as a possibility. Is a malpractice suit pending against some doctor who has given cortisone or ACTH as medicine? Then appears a medical witness who testifies that possibly cancer is caused by hormone imbalance induced thereby. Is it an action for breach of an implied warranty in the sale of cigarettes? Then the medical witness will testify that cigarettes could be a cause of lung cancer. Is it X ray or working in a garage where there have been exhaust fumes? Then the “ possibility ” doctrine is adapted to creating questions of fact in those fields —and the same with benzol exposure and leukemia. Such a doctrine would overturn the rule that the burden is on the party asserting that a disease is based on actionable facts to prove causation (Stubbs v. City of Rochester, supra). It would mean that, wherever such a cause is possible, the burden rests on the opposite party to prove that the disease resulted from something else. Consequently, for so long as the causes of the disease are unknown to medical science, the claimant or plaintiff can always recover—if the trier of the fact is favorably disposed—since no one can prove that the disease had other causes. This is a perversion of the normal rule that the disease must have resulted from the occupation and that the burden of proving causation is upon the party asserting it. The law does not intend that the less that is known about a disease the greater shall be the opportunity of recovery in court.

The Appellate Division majority thought that a question of fact was indicated here by the testimony of appellants ’ witness that some experts, specialists and authorities “feel just the opposite ” from himself on this question. Every medical researcher or specialist would be proud to predict the cause or causes of leukemia or other forms of cancer, and turn out to be right. This does not mean that each doctor’s pet theory is more than an informed guess. The circumstance that some others “ feel just the opposite ” from Dr. Cotter does not mean that they are possessed of any more medical certainty than himself concerning the cause of leukemia. It is everyone’s guess what that may be. So the Appellate Division’s stressing that remark implies that they regarded the burden of disproving causation as resting on appellants rather than that the burden rested on claimant to prove it. That was erroneous. If Dr. Beznikoff’s guess was as good as Dr. Cotter’s concerning the cause of leukemia, then, according to that reasoning, the claimant should recover, even though nobody has any tangible knowledge concerning it. Even an informed guess falls short of any degree of medical certainty.

The order appealed from should be reversed and the claim dismissed.

Dye, J. (dissenting).

The Workmen’s Compensation Board has found as a fact, which has been affirmed in the court below, that the decedent in the course of his work as a piano finisher, and as a result of occupational exposure to, contact with and inhalation of benzol, or its preparations and/or compounds, contracted, became disabled from and died of chronic monocytic leukemia, an occupational disease within the provisions of the Workmen’s Compensation Law (§3, subd. 2, par. 8) contracted within five years previous to his death (§ 40).

At the hearing the medical experts gave conflicting opinions respecting the fact of causal relationship of death to the occupational exposure. The board, in the exercise of its authorized discretion, resolved such conflict in favor of claimant which, having been affirmed, we may not disturb (Workmen’s Compensation Law, § 20).

The sole question then is whether there is any substantial evidence in support of causal connection. I think there is.

Dr. Reznikoff, an outstanding, nationally known hematologist, gave as his opinion that ‘ ‘ a person exposed to benzol may develop leukemia, certainly chronic myelocytic leukemia, probably other types of leukemia, I cannot tell you how much exposure it takes. I don’t think anybody knows, but we do know that the incidence of leukemia, especially chronic myelocytic leukemia, is quite high in patients who have been exposed to benzol. The only two causes we know of leukemia, are first, X-ray exposure, and secondly, benzol”, and when asked: “ you say it is possible'that this man’s leukemia resulted from his alleged exposure to inhalation of benzol or benzene 1 ” he answered: “ That is right.”

This is not a bare guess — a mere scintilla of proof—but a carefully considered answer to a comprehensive hypothetical question. It was an honest effort by a well-qualified doctor to give the board the benefit of his experience and observation in diagnosing and treating this baffling disease. He could not rule out benzol as a possible cause. He had observed that many persons suffering from this type of leukemia had a history of benzol exposure, which observation had been noted by other eminent authorities. Three other doctors disagreed with Dr. Reznikoff but that is not to say that he was wrong or that his opinion should be rejected. Probative acceptance does not depend on quantity.

We deal here with the evidentiary rules to be employed in the determination of a claim arising under the Workmen’s Compensation Law and are not bound by those applicable to the establishment of common-law liability.

Here, as in Matter of Zaepfel v. du Pont de Nemours & Co. (284 App. Div. 693, affd. 309 N. Y. 962), there is nothing irrational about the board’s choosing to accept Dr. Reznikoff’s opinion and conclusions. It is true that he did not express his opinion in positive, dogmatic language, nor did he need to in order to give it probative acceptance. A professional witness of the reputation and unquestioned, outstanding qualifications of a physician such as Dr. Reznikoff cannot be positive beyond any question of doubt. The medical men know better than anyone else the dangers of being dogmatic for every day the seemingly insoluble and unanswerable is solved and answered; for instance, in our time an answer has been found to tuberculosis, polio and a host of other formerly dread diseases. In fact, in our time, silicosis has been classified as an occupational disease caused by exposure to an industrial hazard.

Here, there is uncontradicted proof of exposure to benzol. Here, as was pointed out in Matter of Zaepfel v. du Pont de Nemours & Co. (supra), which we approved, there is enough proof to satisfy the statutory requirements of causal connection.

Even though the appellants’ experts denied any causal relation between leukemia and inhalation of benzol in this case, they readily admitted that “ some experts and specialists and authorities * * * feel just the opposite ”. This points up the sharp conflict of medical opinion. “Neither opinion is certain nor incredible, and to adopt one and reject the other requires entry into a field of fact with power to weigh and balance testimony, a power we do not possess in compensation cases.” (Matter of Gioia v. Courtmel Co., 283 App. Div. 40, 42, motion for leave to appeal denied 306 N. Y. 985.)

This case is a good illustration of the delays that stand between a claimant and a final ruling. This man died in 1950 from exposure to a recognized industrial hazard in 1946 — and there is still no answer. This delay is no doubt attributable to the dispute between its carriers as to whether the loss should be borne by the company that was first or last on the risk in point of time. The board charged the award equally to both carriers. The second carrier failed to file timely notice of appeal. As a consequence of that default, it has paid its share. I see no good reason why the appellant carrier should not pay its apportioned share, since the board found as a fact that exposure occurred in both employments.

For these reasons, I would affirm the order appealed from, with costs.

Judges Fuld, Froessel and Burke concur with Judge Van Voorhis; Judge Dye dissents in an opinion in which Chief Judge Desmond concurs; Judge Foster taking no part.

Order reversed, the award of the Workmen’s Compensation Board annulled and the claim dismissed, without costs.


source: Caselaw Access Project

author: Chief Judge Desmond. Froessel, J. (dissenting).

license: Public Domain

text:
    In the Matter of the Claim of Clarissa Meachem, Appellant, v. New York Central Railroad Company, Respondent. Workmen’s Compensation Board, Respondent.
    Argued April 27, 1960;
    decided October 21, 1960.

      John E. Knauf and David Wanger for appellant.
    I. The action brought by claimant-appellant as administratrix against Mohawk Containers, Inc., and Donald Esford was not a third-party action within the meaning of section 29 of the Workmen’s Compensation Law. (O’Brien v. Lodi, 246 N. Y. 46; Matter of Roth v. Harlem Funeral Car Co., 243 App. Div. 459, 268 N. Y. 661; Matter of Commissioner of Taxation & Finance [Prezioso] v. C. L. P. Concrete Corp., 281 App. Div. 1050; MaMer of Chiap

      pano v. City of New York, 281 App. Div. 996; Commissioners of State Ins. Fund v. H. L. & F. McBride, Inc., 195 Misc. 362; Phoenix Ind. Co. v. Staten Is. R. T. Ry. Co., 251 N. Y. 127; Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410.) II. Jurisdiction of the death claim was properly taken by the Workmen’s Compensation Board. (Matter of Baird v. New York Cent. R. R. Co., 299 N. Y. 213; Matter of Losch v. Curtiss-Wright Corp., 275 App. Div. 1, 300 N. Y. 682; Matter of Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, 344 U. S. 367; Matter of Lanning v. Erie R. R. Co., 265 App. Div. 576, 291 N. Y. 688.)

      David S. Williams for New York Central Railroad Company, respondent.
    I. Claimant is barred from an award by provisions of the Workmen’s Compensation Law relating* to settlement of third-party actions. (O’Brien v. Lodi, 246 N. Y. 46; Matter of Roth v. Harlem Funeral Car Co., 243 App. Div. 459, 268 N. Y. 661; Matter of Cresci v. Krasilousky Trucking Co., 5 A D 2d 569; Matter of Schwabacher v. International Salt Co., 272 App. Div. 173, 298 N. Y. 726; Matter of Parchefsky v. Kroll, 267 N. Y. 410.) II. The Workmen’s Compensation Board had no authority to make an award. (Matter of Baird v. New York Cent. R. R. Co., 299 N. Y. 213; Dusek v. Pennsylvania R. Co., 68 F. 2d 131; Flynn v. New York, N. H. & H. R. Co., 283 U. S. 53; Baltimore & O. S. W. R. Co. v. Carroll, 280 U. S. 491; Reading Co. v. Koons, 271 U. S. 58; Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, 344 U. S. 367.)
    No appearance for Workmen’s Compensation Board, respondent.
   Chief Judge Desmond.

In this workmen’s compensation proceeding the board awarded death benefits to claimant widow and her child, on findings that the death of the employee John D. Meachem on May 9,1948 was the result of accidental injuries which were sustained by him on November 7, 1945 in the course of his employment by respondent railroad company. The Appellate Division, however, reversed the award and dismissed the claim on the ground that a so-called third-party action was settled without the consent of the self-insured employer.” Another alleged ground for reversal (lack of jurisdiction in the Workmen’s Compensation Board because of interstate commerce employment of deceased) was discussed in the Appellate Division opinion but, apparently, not relied on as a basis for decision. That second ground will be taken up at a later point in this opinion.

The Appellate Division held that section 29 of the Workmen’s Compensation Law barred a death award to claimant because as administratrix of her husband’s estate she had without the self-insured employer’s consent settled a “ third-party ” wrongful death action against the owner and driver of an automobile which had injured her husband on February 24, 1948, 27 months after his industrial accident. But to us it is clear beyond any doubt that the action so settled was not such a ‘ third-party ’ ’ suit as is dealt with in section 29 since it had nothing whatever to do, in time or place or otherwise, with the industrial accident of November 7, 1945, which is the basis for the workmen’s compensation death award here in litigation. Neither the language of section 29 nor any interpretation of it during the nearly 50 years it has been on the books authorizes the treatment of appellant’s wrongful death action as a ‘ third-party suit” within the statute. There is absolutely no authority anywhere for the decision below.

These undisputed facts will explain the case:

November 7,1945-—• decedent John D. Meachem in the course of his employment by self-insured respondent New York Central Railroad Company in its West Albany shops received injuries which disabled him and caused his death on May 9, 1948.
December 21, 1945 — Meachem filed his claim for compensation benefits which was controverted on the sole ground of alleged lack of causal relation. An award was made and the railroad company made compensation payments thereunder for total disability until Meachem’s death on May 9, 1948.
February 24, 1948 — Meachem was injured in an automobile accident which, as found by the board, ‘ was not interlinked with the industrial accident of November 7, 1945, and was not the cause” of Meachem’s death. Mrs. Meachem as administratrix brought a wrongful death action against the owner and driver of the car.
June 11, 1948 — the widow on her own behalf and for her infant son filed with the Workmen’s Compensation Board a claim for death benefits.
February 23,1950 — respondent railroad company for the first time announced to the Workmen’s Compensation Board its intention to controvert the claim on the ground that the board was without jurisdiction since “both employee and employer were engaged in Interstate Transportation on the date of this alleged injury and death.” At no prior time during all the earlier compensation hearings on the disability claim and the death claim had any such matter been mentioned.
December 21,1949 — the widow as administratrix was authorized by the Surrogate’s Court of Albany County to settle for $12,000 her suit against the owner and driver of the automobile which had injured Meachem on February 24, 1948. Respondent railroad company did not consent to the settlement of this suit and now asserts that it was a “third-party” settlement and so, having been made without its consent, barred (see § 29, subd. 5) any further award of compensation benefits.
July 5,1957—the Workmen’s Compensation Board made the death award which is now in litigation, finding that the industrial accident injuries of 1945 and not the automobile accident injuries of 1948 were the cause of death.

We can find no basis for holding that the 1949 settlement of appellant’s lawsuit had any effect on the workmen’s compensation rights or that it was in any way covered by or regulated by anything in section 29. From its enactment in 1914, the Workmen’s Compensation Act has dealt with the situation where an industrial accident occurring during employment is caused ‘' by the negligence or wrong of another not in the same employ ’ ’. Never until now has this statute been extended so as to deal Avith subsequent accidents unrelated to the industrial casualty. From the early days of the statute a compensation insurer or self-insured employer was recognized as having rights by subrogation as against an outsider who had caused the very industrial accident for which the insurer or self-insured employer was obligated to pay compensation. As this court noted in O’Brien v. Lodi (246 N. Y. 46, 49): “It may and frequently does happen that the employee in the course of his employment is injured * * * by the negligence of a third party.” The Appellate Division itself soon after the enactment of the act in 1914 described section 29 as covering a case “Where an employee is injured by the act of a third party, in the course of his employment ’ ’ (Lester v. Otis Elevator Co., 169 App. Div. 613, 617, 618). The injured employee (or in case of death, his estate) was not deprived of his common-law suit against that tort-feasor and his “ third-party suit ” was not dependent on or regulated by the Workmen’s Compensation Act. The Workmen’s Compensation Act regulates the relation, not between the workman and the world at large, but between workman and employer ” (Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367, 373; see Travelers Ins. Co. v. Padula Co., 224 N. Y. 397). The injured employee or his estate retains all his common-law rights of action against everyone except his employer. But his employer’s (or employer’s insurer’s) subrogated rights are protected as against the true culprit who in fact caused or contributed to the in-course-of-employment accident for which the employer (or insurer) must pay workmen’s compensation. Section 29 implements the ‘ ‘ quest * * * for the actual wrongdoer ” (2 Larson, Workmen’s Compensation Law, § 71.10). The sole purpose of present subdivision 5 of section 29 is to prevent imprudent settlements of such suits by the employee or his estate to-the prejudice of the employer’s (or carrier’s) subrogated rights. It is impossible to apply this concept to a case like the present one where the employer could •not conceivably be subrogated to any rights as against the operator of the car involved in the totally unrelated automobile collision. The key word is “ employee ” in the very first line of section 29. It is the injury to or killing by a third person of an “ employee ” — that is, one at work in his employment— which brings section 29 into play. If the third party’s tort is not committed while the worker is at work and so entitled to compensation, section 29 has no relevance or effect.

Some argument is made that section 29 is applicable because the industrial hurt and the automobile crash were both causes of the same ‘ ‘ injury ’ ’, that is, death. Death is not an " injury ’ ’ but a result of injury. Meachem suffered two injuries remote from each other as to time and place. Indeed — although it is unnecessary to our argument—the board finding (which we cannot review because founded on substantial proof—Workmen’s Compensation Law, § 20) is that Meachem’s death was caused by the industrial episode alone and not by the injuries suffered in the automobile collision.

No one suggests any precedent for the Appellate Division’s decision except the single and quite inapposite case of Matter of Parchefsky v. Kroll Bros. (267 N. Y. 410). But Parchefsky simply applies to workmen’s compensation law the old rule (see Milks v. McIver, 264 N. Y. 267) that one who wrongfully injures another is liable for the malpractice of the physician who treats the injury since it was all part of an unbroken sequence. How that can be a basis for decision here we cannot understand. We repeat—there is no precedent for holding that this wrongful death settlement was of an action of the kind contemplated and covered by section 29.

The opinion below says that the result of an award of compensation death benefits here would be “an untoward one of double recovery ’ ’. That seems incorrect both in fact and law. The wrongful death suit settlement and the approval thereof by the Surrogate expressly took into account the fact that there were or might be “claims or causes of action” against the railroad company. The compensation death award is at the total rate (for both widow and child) of only $24.23 per week. The death suit settlement was for $12,000. Surely these figures do not justify the conclusion that this was an unconscionable ‘ double recovery ’ ’. On this record the only showing of a “ double recovery ” was as to the minor item of funeral expenses since the settlement included $750 for that item and the Workmen’s Compensation Board award $200 therefor (Workmen’s Compensation Law, § 16, subd. 1).

Even if this were a “ double recovery ”, that fact would not condemn it in the eyes of the law. There is nothing in the Workmen’s Compensation Act forbidding collection of additional amounts from other sources. Indeed, the act itself provides for such additions since even in a true “ third-party ” situation the injured employee or his estate may get part (two thirds) of a third-party settlement in addition to his full workmen’s compensation. Failure to show that there was an actual “ doubling ” of full indemnity and failure to cite any legal bar to the award of full workmen’s compensation puts “ double recovery ’ ’ out of this case.

We turn now to the jurisdictional objection to the death award — that is, the assertion that, since Meachem was working in interstate commerce when injured in 1945, the Federal Employers ’ Liability Act alone governed and the New York State Workmen’s Compensation Board had no jurisdiction. The board, however, made a finding of fact that the employer ‘ ‘ has waived and is estopped from questioning the jurisdiction of the Workmen’s Compensation Board.” The finding of estoppel may or may not have been justified on this record but there was substantial proof of a waiver and so the finding of waiver may not be disturbed by the courts (Workmen’s Compensation Law, § 20). Section 113 of the Workmen’s Compensation Act validly (see Matter of Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, affd. 344 U. S. 367) allows awards in such employments if the claimant and employer ‘' waive ’ ’ their interstate commerce rights and remedies. Waiver means the intentional relinquishment of a known right. There is of course no difficulty about finding a waiver by Meachem. As to his employer, it never expressed any denial of the Workmen’s Compensation Board’s jurisdiction until February 23, 1950, more than four years after Meachem’s industrial accident, four years after workmen’s compensation was first awarded and paid, and 21 months after Meachem’s death. There is some suggestion that it- was not until the decision in Matter of Baird v. New York Cent. R. R. Co. (299 N. Y. 213 [1949]) that this employer was on notice that sole coverage of Meachem’s injury was under the Federal Employers’ Liability Act. Of course, the New York Central Railroad Company knew the work conditions of its employees and, especially because of innumerable prior litigations, it understood the jurisdictional rules. In fact, in the Baird case itself this employer raised the Federal question on July 17,1946, but for reasons of its own did not so controvert Meachem’s claim until 1950, long after his death.

It can be argued that the facts here do not meet the requirements for waiver set out in this court’s decision in 1926 in Fitzgerald v. Harbor Lighterage Co. (244 N. Y. 132). But the Fitzgerald case’s definition of waiver, if definition it was intended to be, was broadened (and liberalized) by the Matter of Ahern v. South Buffalo Ry. Co. opinions (303 N. Y. 545, affd. 344 U. S. 367, supra) filed many years later. We hold that the word ‘ ‘ waive ’ ’ in this statute should be given its ordinary meaning, not a narrow and restricted one. So tested, the proof here was ample to support the finding of waiver.

It is argued, though, that the Ahern decisions (supra) were grounded not on waiver but on estoppel—that is, that Ahern’s employer was not held to have waived but to have been estopped from denying that he had waived. No basis appears for such a construction of either this court’s opinion (303 N. Y. 545) or that of the United States Supreme Court (344 U. S. 367) in Ahern. Both courts agreed that there was nothing in Federal or State law to prevent the parties from agreeing “ ' to forego one set of remedies and abide by another ’ ’ ’ (language quoted in our Ahern opinion from our Fitzgerald opinion, supra). Both courts agreed that this might lawfully be done by submitting the controversy to the New York State Workmen’s Compensation Board. The two courts, after canvassing the facts, agreed in Ahern that there had been such a voluntary consensual submission. Both courts in Ahern stressed facts which were there present and are here present: representation of the employer by experienced counsel; utilization by the parties of the board’s machinery at a series of hearings resulting in a series of awards; and payment and acceptance of those awards. Both courts held that Ahern and his employer had thus efficiently invoked the “permissive statute” (Workmen’s Compensation Law, § 113). There was, of course, another factual element available in Ahern as additional, but not essential, proof of waiver. In Ahern the employer had not raised the question of Federal jurisdiction until after the workman’s time to bring a Federal Employers’ Liability Act suit had passed. But there was no intimation by either court that this time element was an essential basis for a valid finding of waiver by Ahern’s employer. Ahern and his employer waived. Meachem and his employer waived in exactly the same way. That there was in Ahern’s case the added feature of estoppel is a factual difference, but not such a distinction as to produce a different result.

The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division against respondent employer, and the award of the Workmen’s Compensation Board reinstated.

Froessel, J. (dissenting).

We dissent and vote to affirm. We cannot agree with the majority opinion of the court both as to the jurisdictional and the section 29 issues. In their disposition of the jurisdictional question, they flatly overrule Fitzgerald v. Harbor Lighterage Co. (244 N. Y. 132), thereby destroying the salient policy which it was designed to promote, at the same time raising a serious constitutional question as to the conflict between section 113 of the Workmen’s Compensation Law as here applied and the Federal Employers’ Liability Act. With regard to the section 29 issue, principles of law well settled by the decisions of our court have been ignored.

It will be helpful to set forth a rather full statement of the facts before consideration of the applicable law. The deceased employee, John D. Meachem, worked in the locomotive department of respondent New York Central Railroad at its. West Albany shops as a machinist and repairman. On November 7, 1945, while operating an electric switch in the regular course of his employment, he suffered severe shocks and burns. A duodenal ulcer resulted, and he became totally disabled. Meachem filed a claim for compensation benefits on December 21,1945. Respondent controverted the claim on the ground that ‘' causal relation between the condition * * * complained of and any accidental injury ” was lacking; and reserved “ the right to controvert for such other reasons as may later appear ”. Respondent railroad subsequently paid compensation for total disability in accordance with the ensuing award.

On February 24, 1948 Meachem was injured in an automobile ■accident. According to the board’s findings, he died on May 9, 1948 “of an internal hemorrhage due to perforated duodenal ulcer”. (Emphasis supplied.) The attending physician’s report states in greater detail: “ Shock ruptured gastric ulcer emergency operation April 30,1948 and secondary anemia, with secondary hemorrhage massive internal May 7th, patient expired May 9,1948 following second massive hemorrhage.”

On June 11, 1948 appellant, as widow, made application for death benefits to the Workmen’s Compensation Board. Respondent contested the claim on the ground that the automobile accident was the sole cause of death, and hence there did not exist a causal relationship between the industrial accident and the death. Respondent again reserved the right “ to controvert for such other reasons as may later appear Then, on February 23,1950 — several months after the decision of this court in Matter of Baird v. New York Cent. R. R. Co. (299 N. Y. 213, decided May 26, 1949) — respondent filed another notice, in which it announced its intention to controvert on the additional ground that the board was without jurisdiction since ‘' both employee and employer were engaged in Interstate Transportation on the date of this alleged injury and death”.

Prior to any determination by the board of the claim for death benefits, appellant, as administratrix of her husband’s estate, brought suit against the owner and operator of the automobile involved in the collision of February 24, 1948. She petitioned the Surrogate’s Court of Albany County for leave to compromise that action in the amount of $12,000. Her petitioning papers and the order of the Surrogate issued in connection therewith reveal that the action against the owner and operator of the automobile was to recover damages for " wrongful death ”, and also included a claim for “ conscious pain and suffering”. Those papers also show that as a result of the automobile collision appellant’s husband “ sustained severe and permanent injuries ” and “ that said injuries subsequently precipitated and contributed to his death ” (emphasis supplied). The Surrogate granted permission to settle the action on December 21,1949. In a subsequent order, the Surrogate apportioned the proceeds of the settlement among the decedent’s “wife and next of kin ” in proportion to “ the pecuniary injuries ” which they “suffered”. (Decedent Estate Law, §§ 132-133.) Respondent did not consent to the settlement of the action.

After such settlement, the Referee in this case held, on the authority of Matter of Baird v. New York Cent. R. R. Co. (299 N. Y. 213, supra), that the board lacked jurisdiction over the subject matter of the claim for death benefits — claimant’s attorney acknowledging that the Referee “ would have to be governed ” by the Baird case. This determination was reversed by the board, which held that respondent had “ waived and is estopped from raising the question of the jurisdiction of the Workmen’s Compensation Board, by its conduct in paying compensation pursuant to the New York law and in failing to raise the question of jurisdiction before the loss of the claimant’s right of action under the Federal Employers Liability Act.” (See Finding 7; emphasis supplied.) The italicized language was directly contrary to the evidence.

Notwithstanding its findings that decedent “was totally disabled due to duodenal ulcer ” as a result of the 1945 industrial accident, and died “ due to perforated ulcer ” following the automobile accident, the board determined that ' ‘ The automobile accident was not interlinked with the industrial accident of November 7, 1945, and was not the cause of claimant’s death” (emphasis supplied). It was accordingly held that the compromise of the wrongful death action arising out of the automobile collision did not constitute a ‘' third-party settlement ” within the meaning of section 29 of the Workmen’s Compensation Law. After submission of a report by an impartial medical specialist, and a hearing de novo before a Referee, the board also held that causal relationship between the industrial accident and death existed.

The Appellate Division, in unanimously reversing the board, held that respondent was not estopped from raising the defense of lack of jurisdiction over the subject matter; and that the action for wrongful death came within the purview of section 29 of the Workmen’s Compensation Law.

Treating first with the jurisdiction question here presented, appellant’s husband, as previously noted, was engaged as machinist and repairman at respondent’s West Albany shops when he was injured in the course of his employment in November, 1945. In Matter of Baird v. New York Gent. R. R. Co. {supra) we held that workmen similarly engaged at respondent’s West Albany shops must seek redress for their industrial injuries under the Federal Employers’ Liability Act. Our Workmen’s Compensation Board was consequently ousted of its jurisdiction to hear and determine claims arising out of such accidents. However, section 113 of our Workmen’s Compensation Law-—-the constitutionality of which was upheld as applied in Matter of Ahern v. South Buffalo Ry. Co. (303 N. Y. 545, affd. 344 U. S. 367) —provides that “ the employer and the insurance carrier” may “waive their admiralty or interstate commerce rights and remedies

In the Fitzgerald case (244 N. Y. 132, supra) we dealt with a situation parallel to that at bar, also involving section 113 and the question of waiver thereunder. A workman had there filed a claim with the Industrial Commissioner and was awarded compensation for his disability. Payments were made by the employer which the employee accepted. Over a year after his original claim was filed, the employee chose to pursue his Federal rights in an action for injuries under the maritime law. We construed the waiver provision of section 113, and held that such conduct did not constitute a waiver of Federal rights. The waiver contemplated by section 113, wrote Judge Cabdozo (244 N. Y., at p. 137), is one which “ imports ” in the setting of the context ” a ‘ ‘ concurrent evidence of intention having the force of an agreement to forego one set of remedies and abide by another ’ ’ . That ‘ ‘ intention ’’ to forego Federal remedies must be “ announced ” by “ all who must participate ”—namely, the claimant, employer, and insurance carrier—before the statute will be operative to confer jurisdiction on the board (id., pp. 136-137).

The salutary policy reasons which impelled the formulation of these rigid standards for waiver under section 113 are apparent : By maintaining such standards, an injured workman who may have filed a claim and accepted benefits under our Workmen’s Compensation Law would not be precluded thereby from instituting action under the Federal Employers’ Liability Act (FELA)—or any other relevant Federal act, as the case may be (e.g., The Jones Act, U. S. Code, tit. 46, § 688) —and recovering a verdict over and beyond the limited schedule of allowances afforded him under our Workmen’s Compensation Law.

As a direct result of the majority’s overruling of the Fitzgerald case, injured workmen who may henceforth mistakenly file claims for compensation under our Workmen’s Compensation Law and accept benefits before realizing their rights were governed by the FELA would be seriously prejudiced — deprived of a possible substantially higher recovery. This we cannot sanction. In our view, the standards of waiver propounded in Fitzgerald, and the policy effectuated thereby, should be preserved. Thus we would hold in the instant case that in the “ setting of the context ” here presented, neither the claimant nor the self-insured employer ‘ ‘ announced ” an “ intention ’ ’ to forego Federal remedies, thereby giving rise to the waiver contemplated by section 113. As was the case in Fitzgerald, filing a claim, appearance before the board, and acceptance of payments on decedent’s part did not amount to a declaration of an intention to waive.' And, similarly, the appearanee and payment of disability awards by the self-insured employer herein did not constitute an announced intention to waive on the application for death benefits.

The Ahern decision {supra) did not, as the majority hold, broaden and liberalize the requirements for waiver under section 113. In that case, the carrier involved had participated in hearings before the board and made payments on a disability claim to the injured workman, as ordered by the board, for a period of four and one-half years, and first contested jurisdiction after that period of time had elapsed. Recovery under the FELA was then barred by the three-year limitation period prescribed therein (U. S. Code, tit. 45, § 56).

In view of those circumstances, this court in Ahern found it unnecessary to enforce the standards propounded in Fitzgerald since an equitable estoppel was clearly present — the FELA Statute of Limitations had run—and the case turned on that circumstance. The Supreme Court of the United States so construed the Ahern case, upholding the determination on the ground of equitable estoppel, pointing out that the limitation period had run and that we viewed “ these circumstances as estopping appellant ” (344 U. S. 367, 371-372, 373, supra).

Here, there is no evidentiary basis whatever for a finding of equitable estoppel. The carrier from the start—while the Baird litigation was proceeding through the courts—reserved the right to controvert for such other reasons as may later appear. Several months after Baird was decided, the jurisdictional defense was formally asserted on the basis of our decision in Baird; and at the time of this assertion of the defense, claimant was afforded nearly 15 months to institute action under the FELA.

Judge Foster in his opinion in the Appellate Division clearly showed that the FELA limitation period had not elapsed at the time that the jurisdictional defense was asserted by respondent (see discussion 7 A D 2d 253, 255-256; Dusek v. Pennsylvania R. R. Co., 68 F. 2d 131 [analyzing relevant Supreme Court cases]). The board had mistakenly held otherwise, and based its decision on a clearly erroneous finding of fact.

Concluding this discussion of the jurisdictional question, the impact of the majority’s decision in this case is to the following effect: The standards for waiver under section 113 of the Workmen’s Compensation Law are now being liberally construed for the benefit of a claimant who slept on her rights for nearly 15 months — during which period she could have instituted action under the FELA. As a result, the standards for waiver will henceforth be liberally applied in all cases, and, in consequence, workmen who may mistakenly file claims under our Workmen’s Compensation Law and accept benefit payments in ignorance of their rights will be barred from securing substantially greater recoveries under the FELA.

Turning next to the second issue involved on this appeal, the particular question presented is whether the wrongful death action brought by appellant against the owner and operator of the car involved in the 1948 accident constitutes a third-party action within the meaning of section 29. Holding that it is such an action would mean that appellant herein was entitled only to deficiency compensation in the first instance, and that she lost that right by virtue of the settlement of the third-party action without respondent’s consent, in violation of subdivision 5 of section 29 (O’Brien v. Lodi, 246 N. Y. 46, 51; Matter of Roth v. Harlem Funeral Car Co., 243 App. Div. 459, affd. 268 N. Y. 661).

Section 29 of the Workmen’s Compensation Law was designed to place the ultimate liability in damages for the loss sustained by the workman — or his dependents, as the case may be — on the third party who stands outside of the employer-employee relationship; to minimize the financial burden imposed upon the party liable for compensation and, at the same time, ensure a full—but only a single — recovery to the injured workman or his dependents. Thus section 29 grants to the party liable for compensation the benefit of any recovery or right of action, which may be had by the one injured or wronged, against the third party who is independently liable for the same wrong or injury as to which compensation is due (Matter of Parchefshy v. Kroll Bros., 267 N. Y. 410: Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367, 373; Caulfield v. Elmhurst Contr. Co., 268 App. Div. 661, 664, affd. 294 N. Y. 803; Employers Mut. Life Ins. Co. v. Refined Syrups & Sugars, 184 Misc. 941, 944-945, affd. 269 App. Div. 931). This benefit accrues to the party liable for compensation even though it may have in fact contributed to the injury of the workman by its own negligence (Caulfield v. Elmhurst Contr. Co., supra-, Employers Mut. Life Ins. Co. v. Refined Syrups & Sugars, supra).

Appellant in this case concedes the fact — and, as appears from the petitioning papers and orders issued in the Surrogate’s proceedings, it is abundantly clear — that the third party against whom appellant brought suit contributed in some measure to her husband’s death. The wrong redressed by compromise of that wrongful death action was personal to appellant and her minor son, and was in reality not decedent’s death, or the physical injury caused to him, but rather the extinguishment of their means of support as a result of decedent’s death. For death per se or physical injury to decedent there could be no recovery in a wrongful death action. In consequence, the damages recovered by compromise of that action reflected the pecuniary loss sustained by appellant and her minor son as a result of decedent’s death (see Holmes v. City of New York, 269 App. Div. 95, 97-98, affd. 295 N. Y. 615).

This same analysis obtains for death benefits under the Workmen’s Compensation Law. Hence the death benefits awarded to appellant and her minor son by the board in this case were designed to recompense them, as dependents, for the pecuniary loss sustained as a result of decedent’s death (Workmen’s Compensation Law, § 16; see Matter of Schwabacher v. International Salt Co., 298 N. Y. 726, affg. 272 App. Div. 173). Respondent was charged with liability for the loss to the widow and son since it too, by reason of the industrial accident sustained on its premises, contributed to their decedent’s death.

The conclusion to be drawn from the foregoing is that two independent torts inflicted upon decedent by two parties coalesced to cause his death and thereby gave rise to a single wrong or injury—extinguishing support — to his widow and minor son-, and compensation under the Workmen’s Compensation Law was due for this single wrong from one party responsible, the employer, and an action for damages at law for the same single wrong lay against the third-party tort-feasor. It is unmistakably clear, therefore, that the right of action which appellant had against the third-party tort-feasor is within the purview of section 29. That section comes into operation where the one injured, as here, has a right of recovery against a third party who is independently liable for the same single wrong as to which compensation is due. In such a situation, the party liable for compensation—here respondent — is granted the right to have its compensation burden minimized, and the ultimate responsibility in damages is placed on the third-party tortfeasor. Such is the law of this State. ‘‘ Untoward ’ ’ double recoveries — as Judge Foster stated (7 A D 2d, at p. 256) —such as that had by appellant for the single wrong done unto her is thereby also prevented (Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410, 414, supra; Matter of Zirpola v. T. & E. Casselman, Inc., 237 N. Y. 367, 372-373, supra; see Matter of Schwabacher v. International Salt Co., supra).

Even aside from the statutory policy of section 29, under general common-law principles a single injury or loss may be redressed only once. “ The law does not permit a double satisfaction for a single injury” (Milks v. McIver, 264 N. Y. 267, 270; see, also, Barrett v. Third Ave. R. R. Co., 45 N. Y. 628, 635; Brooks v. Rochester Ry. Co., 156 N. Y. 244). And if a partial recovery is had against one party liable for the total loss, a recovery against another party also liable for the total loss is limited to the amount of the deficiency (see Knapp v. Roche, 94 N. Y. 329, 334; Sagan v. State of New York, 205 Misc. 435; Debtor and Creditor Law, §§ 231, 233).

The majority of this court has taken the position that since the automobile accident did not occur in the course of employment and was not contemporaneous with the industrial accident, the wrongful death action cannot be a third-party action within the meaning of section 29. In the first place, the plain language of section 29 does not impose any such requirements. The only conditions imposed by that section are: (1) “If an employee entitled to compensation under this chapter” (2) “be injured or killed by the negligence or wrong of another ” (3) “ not in the same employ ’ But, more important, the same argument was in substance advanced in the Parchefsky case (supra) and was there rejected and disposed of by this court (see 267 N. Y., at pp. 416-418). There is no authority for the position of the majority in this casó.

In Parchefsky a workman sustained a cut on his wrist in the course of his employment. At a subsequent time the injury was aggravated as the result of malpractice by a physician. We held that under the Workmen’s Compensation Law the employer was liable for both the result of the original injury and the subsequent malpractice; and that if a recovery was had against the negligent physician in a common-law suit for the results of the malpractice, that recovery enures to the benefit of the employer, who then as a practical matter is liable only for the original injury apart from the results of the malpractice.

Judge Lehman, writing for the court, stressed the fact that our Workmen’s Compensation Law in such a case imposed liability on the employer for the ' ‘ ultimate results of the injury ’ ’ caused to the employee. But he added (267 N. Y., at p. 418): “ To the extent that the injury for which compensation may be made under the Workmen’s Compensation Law includes the result of malpractice [i.e., the subsequent and noncontemporaneous tort], the injury ’ is due to the negligence of the physician within the spirit and letter of the statute.” (Emphasis in original.) In other words, the recovery in such a case from the subsequent and noncontemporaneous tort-feasor, the physician, is a third-party recovery within the meaning of section 29. The fact that the tort of malpractice, or any other tort, is not contemporaneous with the industrial accident is of no moment.

In the instant case, the “ injury ” or wrong done to appellant was the extinguishment of her means of support. Compensation was due for that injury. However, a subsequent tort coalesced with the industrial accident to cause that injury; and both tort-feasors were independently liable for the same injury or wrong. Hence the award of benefits by the board in the instant case of necessity “included” and compensated appellant for the “ result ” of the subsequent and noncontemporaneous tort. The recovery had herein by appellant against the subsequent tort-feasor, therefore, squarely falls within the ambit of section 29, in accordance with the rule of the Parchefsky case {supra).

An additional ground supports our view. The automobile accident, or subsequent tort, herein involved unquestionably aggravated the industrially caused ulcer condition, and brought on decedent’s death. That was appellant’s position in the wrongful death action and in the proceedings before the Surrogate— in which the employer was deprived of participation. Section 459, Restatement, Torts, states: “If the negligent actor is liable for an injury to a part of another’s body which renders it peculiarly susceptible to the harmful effect of later accidents, the actor is also liable for further harm sustained by such part in a subsequent accident, if such harm would not have been sustained had such part of the other’s body not been weakened by the actor’s negligence.” (Emphasis supplied.) (Accord: Conner v. City of Nevada, 188 Mo. 148, 161-162 [quoted and approved in Wagner v. Mittendorf, 232 N. Y. 481, 487].) When thus viewed, the instant case is exactly the same as the classic aggravation of injury case involving a malpracticing doctor, dealt with in Matter of Parchefshy v. Kroll Bros, (supra). We can find no distinction between inflicting a subsequent injury by a surgeon’s scalpel as in Parchefshy or by an automobile as here. And indeed a right of subrogation—which the majority hold is an essential prerequisite to the application of section 29—would be afforded the employer against the subsequent tort-feasor who aggravated the industrially .caused ulcer condition (267 N. Y. 410, 414).

To spell this out: The facts show that the industrial accident left decedent with an ulcer condition. This ulcer was ruptured or perforated as a result of the automobile accident, and decedent died in consequence thereof. Since the employer was responsible for the weakened condition which rendered decedent susceptible to the further harm, it is liable for the total loss. Similarly, the third party took his victim as he found him, and is also liable for the total loss, notwithstanding the fact that but for the ulcer — which he in no way caused — decedent would not have sustained a rupture or perforation thereof and died. In such a case, however, as in the classic subsequent aggravation of injury case involving a malpracticing doctor, the first tortfeasor who is liable for the entire loss is subrogated to the rights of the injured party against the subsequent tort-feasor who aggravated the original injury.

Any attempt, therefore, to distinguish Parchefshy (supra) factually, or on principle, is, in our opinion, clearly untenable. Here involved is a true third-party action, as contemplated by section 29, and claimant by settling that action without the consent of the employer prejudiced the latter’s rights.

Finally, as to the matter of the board’s finding that the automobile accident was not the cause of the husband’s death: Appellant herself has repudiated this finding—which as a matter of law has no basis in the record—by conceding that both injuries caused her loss.

Accordingly, the order appealed from should be affirmed.

Judges Dye, Fuld and Burke concur with Chief Judge Desmond ; Judge Froessel dissents in an opinion in which Judge Van Voorhis concurs; Judge Foster taking no part.

Order reversed, etc.


author: Van Voorhis, J. Burke, J. (dissenting). Chief Judge Desmond (dissenting).

text:
    In the Matter of Robert S. Turton, Deceased. Government of British Honduras, Appellant; Harold A. Penso et al., Respondents. (Two Other Proceedings.)
    Argued. October 3, 1960;
    decided October 21, 1960.

      Franklin M. Desser and Bernard B. Smith for appellant.
    I. The Surrogate’s Court lacked jurisdiction of decedent’s estate. (Matter of Newcomb, 192 N. Y. 238; Matter of Connell, 221 N. Y. 190; Matter of Cornell, 267 N. Y. 456; Matter of James, 144 N. Y. 6.) II. The power of the State of New York to escheat or to take into custody ownerless property does not extend to nonresidents’ intangibles having no situs within the State. (Matter of Lagergren, 276 N. Y. 184; Matter of Menschefrend, 283 App. Div. 463.) III. The order under review is unconstitutional and a denial of due process of law. (The Sapphire, 78 U. S. 164; Guaranty Trust Co. v. United States, 304 H. S. 126; Westervelt v. Gregg, 12 N. Y. 202; Scott v. McNeal, 154 U. S. 34; Old Wayne Mut. Life Assn. v. McDonough, 204 U. S. 8; Twining v. New Jersey, 211 U. S. 78; Rees v. City of Watertown, 86 U. S. 107.) IV. The order under review must yield to the Treaty of 1899 and supplement of 1902 wherein appellant is accorded most favored nation status. (Hauenstein v. Lynham, 100 U. S. 483; United States v. Pink, 315 U. S. 203; Santovincenzo v. Egan, 284 U. S. 30; United States v. Belmont, 301 H. S. 324; St. Regis Tribe of Mohawk Indians v. State of New York, 5 N Y 2d 24.) V. The government, in default of blood relations of decedent, succeeds under its own statutes to his estate wherever located as the true heir.

      George H. Schwartz, Joseph T. Arenson, Samuel Spiegel, Waldemar J. Dittmar, George S. Goldberg and Maxwell J. Eile for respondents other than the Attorney-Greneral.
    I. Decedent’s New York property will not be delivered or transferred to a foreign, jurisdiction where such property would fall and belong to a foreign government. (Johnston v. Spicer, 107 N. Y. 185; Matter of Menschefrend, 283 App. Div. 463; Matter of Bonner, 192 Misc. 753.) II. The Government of British Honduras would take heifless property “ as bona vacantia ” and therefore has no standing here even on the authority of English law. III. The Surrogate’s Court had jurisdiction over the subject matter. (Matter of Lamborn, 168 Misc. 504, 255 App. Div. 755, 280 N. Y. 504; Matter of Clark, 6 Misc 2d 902; Matter of Neumayer, 168 Misc. 173; Matter of Christesen, 277 App. Div. 893; Matter of Connell, 221 N. Y. 190; Matter of James, 167 Misc. 142, 254 App. Div. 723.)

      Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen, Paxton Blair and Tony Berman of counsel), for Attorney-General of the State of New York, respondent.
    The Appellate Division correctly affirmed the Surrogate’s ruling that appellant, as sovereign, had no right as an heir or distributee to intervene in the probate or administration proceedings pending in New York as to property located here. Moreover, the affirmed finding of fact, as to the issue of foreign law, is that appellant, under the terms of its own ordinance, is stated to be entitled to take heir-less property not as an “ heir ”, but as “ bona vacantia ”. Bona vacantia belong to the sovereign in whose jurisdiction they are located. (Matter of Menschefrend, 283 App. Div. 463; United States v. Fox, 94 U. S. 315; Irving Trust Co. v. Day, 314 U. S. 556; Riley v. New York Trust Co., 315 U. S. 343; Santovincenzo v. Egan, 284 U. S. 30.)
   Van Voorhis, J.

The Government of British Honduras, a Crown Colony of Great Britain, standing in treaty relations with the United States in all that concerns the right of disposing of every kind of property, real or personal, has moved to intervene specially in proceedings pending in the Surrogate’s Court of New York County for the probate of an alleged last will and testament dated November 12, 1955. Domiciled in British Honduras, the testator left a sizable estate claimed to be situated partly there, and partly in the States of New York, Illinois and in the Province of Quebec, Canada. His descendants are all illegitimates domiciled like himself in British Honduras. There appear to be no New York State creditors. The sole interest or power of New York State in or over the administration of his estate stems from the circumstance that stock certificates in 50 corporations were discovered in New York City as well as several bank or brokerage accounts also belonging to him at the time of his death. Both New York State and the (Government of British Honduras are seeking to recover on the basis that there are no known heirs entitled to inherit in intestacy.

The decedent left a will purporting to have been executed May 10, 1918, which was ordered by the Supreme Court of British Honduras on December 7, 1955 to “be admitted to probate without the erasures and interlineations thereto until a later will be found ’ ’ and letters of administration with the will annexed were issued “ for a period of twelve months or until a later will is found which ever event shall first occur ” upon the giving of a bond. These letters have been extended and continue in force and effect.

Thereafter an action was brought in the Supreme Court- of British Honduras, Probate Side, to have the 1918 will revoked and to probate the said alleged will of November 12, 1955 as a lost or destroyed testament.

The trial of that action was conducted in that British Crown Colony during more than 18 consecutive trial days and at least 14 witnesses testified, all of them residents of British Honduras, and its decision appears to have been delayed by the proponents of the 1955 document by appealing to the Privy Council in London, England, from an intermediate order to take the deposition of the former Registrar (General now living in Vancouver, British Columbia. A petition for ancillary letters of administration by the administrators with the 1918 will annexed is pending undetermined. Under section 159 of the Surrogate’s Court Act, the Surrogate must issue ancillary letters where a will of a person who resided without the State has been established in a foreign country. Temporary letters of administration have been issued in a separate proceeding to the Public Administrator of the County of New York. Notwithstanding the foregoing, the Surrogate in New York County elected to assume jurisdiction to probate the 1955 will and appointed a special guardian for infant legatees, and successive special guardians for unknown infants and incompetents, who, if they exist, are probably in British Honduras.

Invoking the rule that comity among free nations has long required that, in the orderly administration of the estate of a foreigner who dies owning personal property both at home and abroad, recognition be given to the fact that there is but one estate and that primary probate or administration proceedings should be undertaken by the appropriate court of the decedent’s domicile, all other proceedings being ancillary thereto (Parsons v. Lyman, 20 N. Y. 103, 119-121; Matter of Fitch, 160 N. Y. 87), and that, ‘ ' Where such a will has already been probated in the foreign country it may not be proved in an independent proceeding here ” (Matter of Connell, 221 N. Y. 190, 194; Matter of Cornell, 267 N. Y. 456, 463), the Government of British Honduras contends that the 1918 will having been admitted to probate in that jurisdiction subject to a later will being established, and in view of the action which has been tried and is now pending undetermined there to revoke it and to establish the 1955 will, the New York courts lack jurisdiction and that it is at least an abuse of discretion for them to undertake to probate the 1955 alleged will and thereby to decide an issue over which the court of the country of domicile has already assumed jurisdiction (cf. Matter of Lamborn, 168 Misc. 504, affd. 255 App. Div. 755, affd. 280 N. Y. 504, where Surrogate Foley declined jurisdiction under less compelling circumstances).

The theory under which British Honduras claims to be interested is apparently that the 1918 will was revoked by the execution of the alleged 1955 will, and that the latter has not come to light for the reason that it was revoked and destroyed during the lifetime of the testator without reviving the first will (Decedent Estate Law, § 41; Matter of Christesen, 277 App. Div. 893) or that British Honduras is entitled to any assets undisposed of under the 1918 will by its oavh statute for the benefit of dependents of the decedent and by existing treaties.

Section 147 of the Surrogate’s Court Act permits any person to file objections to the probate of a Avill Avho is “ interested in the event as devisee, legatee or otherwise ”. This accords Avith the more general right to intervene established by section 193-b of the Civil Practice Act. That Avould include the Government of British Honduras which claims the assets in this estate wherever situated under its statute entitling it to recover in event of intestacy in default of lawful distributees, and enabling it to use these to ‘ ‘ provide, in accordance with the existing practice, for dependents, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.” At this stage we are not called upon to determine whether the Surrogate lacked jurisdiction to entertain proceedings for the probate of decedent’s 1955 will, nor to decide whether, in case probate fails and in default of lawful distributees, the Government of British Honduras or the State of New York would be entitled to whatever personal property has a situs in New York. Neither do we now rule upon what effect probate of either will in British Honduras may or would have in New York, nor the effect in British Honduras of the probate of this will in New York State. It is sufficient that the rights of British Honduras may be affected if the will is probated in New York. The principles on which interested persons are permitted to intervene are sufficiently broad to include the Government of British Honduras as well as the Attorney-General of the State of New York (Matter of Davis, 182 N. Y. 468). Both are claiming assets of the decedent in case of intestacy. Each is entitled to be heard and to participate in this litigation. There is no reason on account of which the Attorney-General should be a party to the litigation while the Government of British Honduras, where the decedent was and all of his descendants and beneficiaries are domiciled, should be excluded. We decide no other question than that it should be permitted to intervene.

The order appealed from should be reversed insofar as appealed from, the question certified answered in the negative and the application of the Government of British Honduras to intervene in the proceedings now pending in the Surrogate’s Court of New York County granted, with costs in all courts.

Burke, J. (dissenting).

We do not believe that the Government of British Honduras has shown that it possesses a status which would require the Surrogate to grant it permission to intervene in a proceeding to probate a will in New York disposing of the personal property of a nonresident decedent. Although a person lacking status to intervene in a proceeding obviously may not attack the jurisdiction of the court, the circumstances of this case impel us to observe that the Surrogate unquestionably had discretion to probate this nonresident’s will insofar as it related to personal property in this State. (Surrogate’s Ct. Act, §§ 45, 202.) In this connection it is significant to note that no will has been admitted to probate in British Honduras in solemn form. In the proceedings to have the 1955 will probated in solemn form, the proponents of the 1918 will which was asserted by way of counterclaim offered it as probated in common form. The common form of probate is not deemed a probate within the meaning of our statute. (Matter of Connell, 221 N. Y. 190.) Unless a will has been probated in the foreign country in a manner which complies with our statutes, ancillary letters may be withheld. (Surrogate’s Ct. Act, § 159; Matter of Gifford, 279 N. Y. 471.) It is well known that when a nonresident’s will is admitted to probate in New York all the proceedings relate only to the assets located in New York. Thus the scope of inquiry into the asserted right of the Government of British Honduras to participate in the New York proceeding is circumscribed by the specific nature of the interest it claims in the property situated in New York. In this regard we must consider the posture in which the case came to this court.

For the purpose of the application, the Surrogate and all parties assumed that the decedent died intestate a domiciliary of British Honduras and he left him no person with any right of succession prior to that of the government. It is clear, therefore, that the Government of British Honduras does not represent the deceased, is not acting for a domiciliary administrator, and is not and never has been acting as decedent’s administrator in British Honduras. The probate of the will here will only affect the rights of persons who have an interest in the New York property. Since nothing that is done in the New York proceeding will in any way affect the Government of British Honduras ’ rights, if any, to administer or take the property of the decedent that is located in other jurisdictions, a right to take property of the decedent that is located in British Honduras cannot endow it with an interest in these proceedings. The Government of British Honduras had to prove that it had a pecuniary interest in the assets located in New York in order to have standing to intervene in the proceeding to probate the will (Surrogate’s Ct. Act, § 147). Since an escheat of the property is involved, the Government of British Honduras had to claim the property in New York through the decedent. To establish such a relationship, the government admittedly had to establish its capacity to take the New York property as an heir. In fact, the government did base its claim to intervene on the theory that it was an heir. But its claim to such status was correctly found to be untenable. Where, as here, the relevant statutes of the foreign government reveals that the government would take property as “ bona vacantia ”, that government is neither recognized as an heir of its domiciled decedent (Matter of Menschefrend, 283 App. Div. 463, affd. 8 N Y 2d 1093, decided herewith) nor is it qualified upon intestacy to take his personal estate within New York. We find it difficult, therefore, to follow the court’s statement that we are not deciding whether, if probate fails and there is a failure of heirs, the Government of British Honduras would be entitled to the personal property which has a situs in New York. That was decided in the courts below and is the sole question for determination here.

The order of the Appellate Division should be affirmed and the question certified answered in the affirmative.

Chief Judge Desmond (dissenting).

I concur with Judge Burke for affirmance.

" ‘ Where a person seeks to intervene and the question of his right to do this is raised, the surrogate must determine the status of that person before permitting intervention. It is the right and duty of the surrogate to try the question of interest if it is raised before allowing any person to contest a will even where such person is named in the petition as an interested party ” (2 Warren’s Heaton, Surrogates’ Courts [6th ed.], p. 528; see Matter of Davis, 182 N. Y. 468, 472-473; Matter of Cook, 244 N. Y. 63, 72). Intervention, therefore, cannot be allowed as a matter of discretion, favor or comity. The Surrogate, recognizing this as did the parties, conducted the trial to determine whether there was any basis for the claim of right asserted by the Crown Colony of British Honduras, that is, the claim that if the decedent should be found to have died intestate the Crown Colony in its own right would, under its local statute, be decedent’s sole heir as to all his property wherever located. The Surrogate in a decision which I believe to be clearly correct and which the Appellate Division unanimously affirmed, held against that claim of right and, accordingly, refused to permit intervention. Our court, however, is now reversing and ordering intervention without passing at all on the only question presently in litigation, that is, the status or interest of the petitioner Crown Colony.

Judges Dye, Froessel and Foster concur with Judge Van Voorhis. Judge Burke dissents in an opinion in which Chief Judge Desmond concurs in a separate opinion and in each of which Judge Fuld concurs.

Order reversed, with costs in all courts to appellant payable out of the estate, and the application of the Government of British Honduras to intervene in the proceedings now pending-in the Surrogates’ Court of New York County granted. Question certified answered in the negative.