
    In the Matter of the Claim of the Department of Taxation and Finance of the State of New York, Arising out of the Death of Michael Kelleher, Deceased, Respondent, against City of New York et al., Appellants. Workmen’s Compensation Board, Respondent.
    Third Department,
    July 1, 1947.
    
      
      John J. Bennett, Corporation Counsel, for City of New York, appellant.
    
      Lewis Abrahams, attorney (Robert E. Schaffer and Lewis Abrahams of counsel), for Thomas Kelleher, as administrator, etc., appellant.
    
      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Gilbert M. Landy, Assistant Attorneys-General of counsel), for Workmen’s Compensation Board, respondent.
   Heffernan, J.

The decedent, Michael Kelleher, was employed as a maintenance man by the City of New York. He lived- and worked on Welfare Island which is owned by the city and is occupied- exclusively by city institutions. His regular hours of employment were from 7:30 a.m. to 4:00'p.m. He received his food and lodging as part of his compensation.

On May 15, 1945, decedent was permitted to take a vacation' for a period of two weeks. Two days later he left the place of his employment to do some shopping in New York City. Later in the day he returned to his place of abode. At about 10:30 p.m. on the same day he left his room for the purpose of returning to the city and while still on his employer’s premises he was struck by a bus owned and operated by the latter and sustained fatal injuries as a result of which he died three days later.

Decedent left no dependents entitled to compensation and no claim was made for his funeral expenses. He was, however, survived by a son, who, on June 10, 1945, was appointed administrator of his estate by the Surrogate’s Court of New York County for the purpose of prosecuting an action against the City of New York on the theory that the latter negligently caused his father’s death. Thereafter, such an action was instituted in the Supreme Court and is now pending.

A cause of action for injuries resulting in death prosecuted by an administrator is for the benefit, not of dependents as defined by the Workmen’s Compensation Law, but of next of kin as defined by sections 133 and 134 of the Decedent Estate Law. The two classes are not invariably identical. (Matter of Battalico v. Knickerbocker Fireproofing Co., 250. App. Div. 258, motion for leave to appeal denied, 274 N. Y. 641.)

Subsequently to Kelleher’s death his employer filed in the office of the Workmen’s Compensation Board the standard form of first report of injury in which it was stated, inter alia, that Kelleher’s mortal injuries occurred while he was on his vacation.

A hearing was had before the Workmen’s Compensation Board and that tribunal held that the death of the decedent arose out of and in the course of his employment, that,he left no dependents, that no claim was made for his funeral expenses and thereafter it made an award against the City of New York and in favor of the Vocational Rehabilitation Fund and the Fund for Reopened Cases.

The administrator appeared in that proceeding and challenged the jurisdiction of the board upon the ground that decedent’s injuries and death did not arise out of and in the course of his employment.

The board ruled that inasmuch as there were no persons entitled to death benefits by reason of the death of decedent and because no claim was made for funeral expenses the administrator was not' a party in interest and had no standing before the board.

The employer and the administrator appealed to this court from the determination of the Workmen’s Compensation Board. The appeal on behalf of the employer has been discontinued however and we now have before us only the appeal of the administrator.

An administrator as such is not entitled to claim compensation or death benefits (Workmen’s Compensation Law, §§ 16, 25).

In our opinion the board correctly held that the appellant was not a party in interest before it. He is not aggrieved by its ruling nor is he bound by its determination that decedent’s injuries and subsequent death arose out of and in the course of his employment. He is entitled to litigate that, issue, among others, in the action pending in the Supreme Court. The decision of the Workmen’s Compensation Board is no bar to the maintenance of that action (Matter of Zirpola v. Casselman, Inc., 237 N. Y. 367; Indemnity Ins. Co. of North America v. Buckley, 270 App. Div. 603). We express no opinion upon any other question presented..

It, therefore, follows, that the appeal of the administrator should be dismissed but, under the circumstances, without costs.

Hill, P. J.

(dissenting). Appellant, Thomas Kelleher, as administrator, etc. of Michael Kelleher, deceased, has brought an action under article 5 of the Decedent Estate Law to recover damages against the City of New York arising out of the death of the administrator’s father, the intestate, which resulted according to the allegations of the complaint, from the negligence of the defendant city; its employees and agents. He appeals from an award and decision of the Workmen’s Compensation Board which determined that the intestate came to his' death while engaged in the regular course of his employment and while working for his employer the City of New York, and which denied a review upon the ground that the administrator is not a party in interest and therefore has no standing before the Workmen’s Compensation Board.” An award of $500 to the Rehabilitation Fund and- $1,500 to the Fund for Reopened Cases has been made.

The issue here is not comparable with an award made in a case where an action for negligence may be maintained against a third party, for if this intestate was an employee of the city and his death followed an injury received in the course of his employment and arising therefrom, the remedy under compensation is exclusive. Upon the other hand if, as claimed by the appellant, the intestate was not at the time of his injury in the employ of the city, and if his death did not result from an injury received in the course of and arising out of his employment, the Workmen’s Compensation Board .has no jurisdiction or function in connection with the action brought under the Decedent Estate Law.

The Workmen’s Compensation statutes were enacted under section 18 of article I of the Constitution of the State of New York. It provides in part: “ Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment * * * of compensation for injuries to employees or for death of employees resulting from such injuries without regard to fault as a cause thereof * * * or to provide that the right to such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries * * * ”.

It is asserted by the appellant that while intestate was regularly employed by the city, he was not so employed at the time of the injury but had started upon a vacation two or three days earlier. That is sustained by the first report of injury signed by the city which, in answer to the question “ Describe fully how accident occurred, and state what employee was doing when injured ” stated, employee had started vacation on May 16, 1945 — and was on vacation when accident occurred — employee was struck by bus.” An attorney representing the administrator stated to the hearing commissioner, My contention is that this tribunal has no jurisdiction on the ground that the injury and death did not arise out of nor did death occur in the course of the employment. I have facts to substantiate that view, if you will please listen to them.” After a colloquy the referee ruled, “ Then you (sic) request that the case be put over pending outcome of the common-law action is denied ”.

The Supreme Court has general jurisdiction in all matters in law and equity (New York Const., art. VI, § 1). The giving of additional jurisdiction to other tribunals does not diminish the general jurisdiction of the Supreme Court. (Barone v. Ætna Life Ins. Co., 260 N. Y. 410.) The Workmen’s Compensation Board may not deprive the son, next of kin of intestate, of his right to maintain an action for damages in the Supreme Court unless the intestate was injured in the course of his employment by defendant. (U. S. Fidelity & Guaranty Co. v. Graham & Norton Co., 254 N. Y. 50; Streeter v. Graham & Norton Co., 263 N. Y. 39; VanWormer v. Arnold, 255 App. Div. 233.) The board being without power to determine the rights of the next of kin who were not dependents under the Workmen’s Compensation Law, should have awaited determination of the Supreme Court upon the issue raised by- the administrator on behalf of next of kin not dependents under the Workmen’s Compensation Law. The city may not be made liable as an employer and also for negligence. The Workmen’s Compensation Board may not deny a son the right to his statutory cause of action without a hearing, and it is without jurisdiction to determine the rights of next of kin if the injury was received outside the employment by the city.

The- decision should be reversed and the matter remitted to the Workmen’s Compensation Board to await a determination of the action now pending in the Supreme Court.

Foster and Russell, JJ., concur with Heffernan, J.; Hill, P. J., dissents and votes to reverse the award and remit the matter to the board to be held pending the determination of the action in the Supreme Court, in an opinion in which Brewster, J., concurs.

Appeal of the administrator dismissed, without costs.  