
    In the Matter of Dorothy M. Croshier, Respondent, against Arthur Levitt, as Comptroller of the State of New York, Appellant.
    Argued October 17, 1958;
    decided March 5, 1959.
    
      
      Louis J. Lefkowitz, Attorney-General (Milton Alpert and Paxton Blair of counsel), for appellant.
    I. Under the applicable rules of law and judicial precedents, the Comptroller had power to find, and reasonably did find, that the employee’s death was not the natural and proximate result of an “ accident ”. (Matter of Owens v. McGovern, 309 M. Y. 449; Matter of McCadden v. Moore, 276 App. Div. 490, 301 M. Y. 760; Matter of Odell v. McGovern, 308 N. Y. 678; Matter of Morrissey v. McGovern, 1 A D 2d 746; Matter of Rosman v. Levitt, 5 A D 2d 939, 4 N Y 2d 677; Matter of Daly v. State Comptroller, 2 A D 2d 139.)
    
      Raymond E. Aldrich, Jr., and Russell E. Aldrich for respondent.
    I. The fact findings made by the Comptroller required the legal conclusion that the death of Balph M. Croshier resulted from an accident. (Matter of Owens v. McGovern, 309 N. Y. 449; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Lurye v. Stern Bros. Dept. Store, 275 N. Y. 182; Matter of Burris v. Lewis, 2 N Y 2d 323; Matter of Riehl v. Town of Amherst, 308 N. Y. 212.) II. The death of Ralph M. Croshier resulted from an accident and this is true even though a pre-existing pathology may have been a contributing factor. (Matter of Rankin v. New York State Employees’ Retirement System, 274 App. Div. 160; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Gioia v. Courtmel Co., 283 App. Div. 40, 306 N. Y. 985; Matter of Flammer v. Bethlehem Steel Co., 268 App. Div. 944, 295 N. Y. 817; Matter of Cooper v. Brunswick Cigar Co., 273 App. Div. 1038, 298 N. Y. 731; Matter of Green v. Geiger, 255 App. Div. 903, 280 N. Y. 610.) III. As a matter of law, the Comptroller made an erroneous determination and, therefore, under the applicable rules of law and judicial precedents the Appellate Division’s decision annulling the Comptroller’s determination was correct and should be affirmed. (Matter of Morrissey v. McGovern, 1 A D 2d 746; Matter of Odell v. McGovern, 283 App. Div. 585, 308 N. Y. 678; Matter of McCadden v. Moore, 276 App. Div. 490, 301 N. Y. 760; Matter of Rosman v. Levitt, 5 A D 2d 939.)
   Fuld, J.

Ralph Croshier had for many years been a Forest Ranger for the State Conservation Department. As such, he was engaged in the fighting and suppression of fires, frequently in thickly wooded, rough and hilly terrain, and, on occasion, for long periods of time. In October of 1953, when he was 57 years old, he had a mild cardiac insufficiency and then, several months later, suffered a myocardial infarction which hospitalized him for several weeks. When he returned to his duties in March of 1954, although advised by his doctor to take things easy and restrict himself to supervisory work, he continued to perform the very strenuous, albeit usual, activities expected of Forest Rangers. Then, about a year later, on April 11, 1955, he participated in extinguishing what was described as an “ average, nasty * * * little ” forest fire on a steep hill and, shortly after he had ceased his efforts, he collapsed and died from a heart attack.

Croshier had been a member of the New York State Employees’ Retirement System, and his widow, claiming that his death was the result of an “ accident ’ ’ sustained in the performance of his duties, applied for the payment of accidental death benefits pursuant to section 61 of the Retirement and Social Security Law. The Comptroller, as head of the Retirement System, rejected the claim, finding that Croshier “ died of an attack of coronary occlusion secondary to a pre-existing pathological condition of coronary arteriosclerosis and anteroseptal myocardial infarction”, that his fire fighting activities “precipitated ’ ’ such attack, that he sustained no accident in the performance of his duties and that his death was caused by none. The Appellate Division annulled the Comptroller’s determination, indicating that it believed such conclusion compelled by our decision in Matter of Owens v. McGovern (309 N. Y. 449).

Section 61 of the Retirement and Social Security Law provides that an “ accidental death benefit ” shall be payable upon the death of a member if the Comptroller shall determine that he died before the effective date of his retirement 1 ‘ as the natural and proximate result of an accident sustained in the performance of duty ” (subd. a) and section 74 declares, that the Comptroller shall have “ exclusive authority ” to determine all applications for such a benefit (subd. b). The question thus presented is whether, despite this broad grant of authority to the Comptroller, the courts are required to annul his determination that a heart attack, precipitated by physical exertion on the part of the victim in the performance of his usual and customary work, voluntarily undertaken, is not an accident.

No all-inclusive definition of “ accident ” is possible, nor any formulation of a test applicable in every case, for the word has been employed in a number of senses and given varying meanings depending upon the relevant context. In this State, the question of whether one has suffered an accident has been considered in at least three different areas—in the field of accident insurance, of workmen’s compensation and of retirement system benefits — and in each instance somewhat different criteria have been stressed in arriving at the answer.

Although no great reliance may here be placed upon the accident insurance cases — reflecting an interpretation least favorable to the claimant — since their outcome turns on the particular language of the policy, it might well be thought that the same phrase found in two statutes dealing with related subject matter should receive identical interpretation and application. In point of fact, that was the position taken by this court in 1937, when it explicitly held that a decision of the Industrial Board (under the Workmen’s Compensation Law) that an injury was accidental was “ binding” upon the medical board of the Retirement System. (Matter of Nash v. Broohs, 276 N. Y. 75, 82; see Matter of Slattery v. Board of Estimate & Apportionment, 271 N. Y. 346, 353.) The Legislature, however, changed the law in 1938 to provide that the Comptroller was to have ‘ ‘ exclusive authority ’ ’ to determine all applications for any form of benefit under the retirement provisions (Civil Service Law, former § 54, subd. 5; L. 1938, ch. 577; now contained in Retirement and Social Security Law, § 74, subd. b; § 61, subd. a) and that No decision ” by the Workmen’s Compensation Board shall be binding” on the Comptroller in the matter of determining a claimant’s eligibility for an accidental disability or death benefit (Civil Service Law, former § 67, as amd. by L. 1938, ch. 407) and it added a provision in 1945 reciting that a “ final determination ” of the Board that “ benefits are payable pursuant to the workmen’s compensation law by reason of accidental disability or death of a member of the retirement system shall not in any respect, be or constitute, a determination that an accidental disability retirement allowance or death benefit is payable pursuant to the provisions of this article by reason of the accidental disability or death of such member ” (former § 67, subd. 3; L. 1945, ch. 714; now contained in Retirement and Social Security Law, § 64, subd. b).

Having in mind these significant amendments, the variant purposes sought to be achieved by workmen’s compensation and retirement system benefits and the very marked difference in the size of the respective payments, it “ seems reasonably clear ”, as Presiding Justice Fosteb wrote several years ago, 1 ‘ that a different social philosophy was envisaged by the Legislature for benefits under the Civil Service Law than it had in mind for benefits under the Workmen’s Compensation Law. * * * There is quite a distinction between the situation of an ordinary workman and a civil servant; and the Comptroller is dealing with a fund quite different than insurance designed to protect workmen and shift the burden imposed by industrial accidents to industry as a whole. Inherent in this is the suggestion at least that the Comptroller * * * is not bound to accept the tests usually applied in compensation eases.” (Matter of Odell v. McGovern, 283 App. Div. 585, 587, affd. 308 N. Y. 678.) But whatever the considerations, whether based on “ a different social philosophy ” or not, there is no doubt that the Legislature did overrule this court’s decisions in Nash and Slattery and deliberately elected to vest in the Comptroller the “ exclusive authority ’ ’ of deciding whether there had been an accident so as to entitle the claimant to payment of accidental disability or death benefits from the Retirement System. (See, e.g., Matter of McCadden v. Moore, 276 App. Div. 490, affd. 301 N. Y. 760; Matter of Odell v. McGovern, 283 App. Div. 585, affd. 308 N. Y. 678, supra; Matter of Rosman v. Levitt, 5 A D 2d 939, motion for leave to appeal denied 4 N Y 2d 677; Matter of Morrissey v. McGovern, 1 A D 2d 746; see, also, Matter of Daly v. State Comptroller, 2 A D 2d 139, 143.)

In Matter of McCadden v. Moore (276 App. Div. 490, affd. 301 N. Y. 760, supra), for instance, a police officer became disabled following a heart attack brought on by overexertion shoveling snow in the performance of his duty. His application for accidental disability benefits as a member of the Retirement System was denied by the Comptroller who found — contrary to the finding actually made thereafter by the Workmen’s Compensation Board — that the employee had not sustained an accident. The Appellate Division confirmed that determination and, in the course of its opinion, wrote that, although “ numerous cases could be cited in which awards have been affirmed by the appellate courts for a heart condition brought on by over exertion ”, the amendments to the Civil Service Law, to which we above referred, made it manifest that the duty of determining the question of fact as to whether or not an employee has sustained an accidental injury is for the Comptroller ” (276 App. Div., at p. 494). This court affirmed, concluding that confirmation of the Comptroller’s finding of no accident was required, despite the fact that it was the employee’s exertion in the course of his work which precipitated the coronary occlusion resulting in his disability.

To be educed from the McCadden case and those that followed is the principle that it is for the Comptroller to determine whether or not the employee had sustained an accidental injury and that, in making this finding, he is not bound by the accident concept adopted by the Workmen’s Compensation Board or by the test laid down in Matter of Masse v. Robinson (301 N. Y. 34) for compensation cases. Implicit in these decisions is the recognition that, while it may not have been unreasonable for the Compensation Board to regard heart attacks as accidental if the employee, by miscalculating his own strength, inadvertently hastened his own death by exertion, it was not, on the other hand, unreasonable for the Comptroller, in administering the Retirement System, to insist upon a stricter test and conclude that a heart attack precipitated by physical exertion or emotional strain on the part of the victim in the performance of his usual duties, voluntarily undertaken, is not the result of an accident. In other words, ‘1 If reasonable minds might fairly differ” as to whether there was or was not an accident, “ the Comptroller’s independent judgment must be accepted ”. (Matter of Odell v. McGovern, 308 N. Y., at p. 680.)

That the medical and physiological facts are not seriously in dispute does not convert the ultimate issue of whether the death was the natural and proximate result of an accident ” into a pure question of law on which this court has the final word. The inferences to be drawn from the testimony partake sufficiently of factual considerations to require us to respect the legislative direction that the Comptroller shall have “ exclusive authority to determine all applications for any form of retirement or benefit ”, when his conclusion is not unreasonable.

It is noteworthy that in the cases decided under the Workmen’s Compensation Law this court did nothing more than accept the Board’s finding, of accident or no accident, solely upon the ground that there was evidence to support it. Recognizing the rule which accords conclusiveness to administrative determinations, we never indicated that the Board’s finding that the employee had sustained an accident was compelled as a matter of law. The Comptroller stands as a trier of fact in the same position as the Board, and we will not announce a different rule for the findings which that official makes in carrying out the provisions of the Retirement Law.

The Appellate Division, in reaching a contrary conclusion, was of the opinion that this court had, in Matter of Owens v. McGovern (309 N. Y. 455, supra), indicated a narrower scope for the Comptroller’s determination. In that case, upon somewhat similar facts, we reversed a determination by the Comptroller, remitting the proceeding to him, because he had declined to admit the medical testimony offered on behalf of the claimant, but nothing we there decided or said was intended to change the law, firmly established long before Matter of Owens. Although, in the light of the arguments now advanced, the concurring opinion in Owens — the only one to which a majority of the court adhered—might have been clearer on the point, it does not suggest that the Comptroller, or the courts in reviewing his determination, would have to find that the employee sustained an accident if he overtaxed himself in doing his work. Indeed, as we actually wrote, if the findings and conclusions are supported by the record, then, the courts have no alternative but to accept them * * * even though such a course might * * * lead to a result at odds with that reached by the Workmen’s Compensation Board ” (309 N. Y., at p. 458). This is such a case.

The order of the AppeHate Division should be reversed, without costs, and the Comptroller’s determination confirmed.

Dye, J. (dissenting).

On this appeal we review a determination of the State Comptroller, made after a hearing before a Deputy Comptroller, which denied a widow’s claim for death benefits based on the accidental death of her husband while in the performance of his duties as a Forest Ranger in the State Department of Conservation. The claim was disapproved because the hearing officer concluded that the decedent’s death was not due to accident and this, notwithstanding that he had found as a fact that the decedent’s activities had precipitated the attack of coronary occlusion resulting in his death ’ ’.

This decisional paradox is about to be resolved on the theory that the Legislature has endowed the Comptroller, acting through his deputy, with a unique type of juridical discretion whenever called upon to determine claims for benefits arising under the Retirement System and this, because the Legislature has said that a prior final determination by the Industrial Board “ shall not in any respect, be or constitute, a determination that an accidental disability retirement allowance or death benefit is payable pursuant to the provisions of this article by reason of the accidental disability or death of such member.” (Civil Service Law, former § 67, subd. 3.) While the Legislature thus excused the Comptroller from being bound by a prior determination of the Industrial Board attributable to the same accident, they did not thereby say that, in making a determination, he was no longer bound to follow accepted rules governing the making of decisions. On the contrary, when the Legislature gave the Comptroller “ exclusive authority to determine all applications for any form of retirement or benefit provided ” under the retirement statutes (Retirement and Social Security Law, § 74, subd. b), which includes a claim such as this, it was not a carte blanche permission to do as he pleased. To make sure such freedom would not be abused, the Legislature also specifically provided that the Comptroller was to make his determination “ on the basis of the evidence ” (Retirement and Social Security Law, § 61, subd. a). They thus embedded in the statute a rule of law which is fundamental to an orderly settlement of any controversy, whether tried in a court, by an administrator or other designated authority. In deciding as he did, the Deputy Comptroller has ignored this fundamental statutory precept to draw a conclusion of law contrary, not only to all the evidence on the issue, but contrary as well, to his own findings of fact.

The uncontradicted testimony of the eyewitnesses to the happening of the event and the testimony of the medical witnesses, both by those in attendance and in the opinion of experts, all add up to the conclusion that the decedent met his death by accident in the performance of his duties. According to such proof — and the findings of fact based thereon—the decedent had a mild cardiac insufficiency in October, 1953 which passed over, but later on and between December 7 and 24, 1953 he was hospitalized and treated for ‘ ‘ anteroseptal myocardial infarction ”. He returned to his duties as a Forest Banger in March, 1954, at which time his activities were restricted “ to doing only supervisory work ”.

On the day in question, April 11, 1955, during the forenoon he responded to a number of permit fires and false alarms. In the afternoon he responded to a fire alarm in a hilly region near Dean Boad, Putnam County. The fire was in a steep, woody and very rough terrain. To reach the area of the fire, the decedent had to cross a brook and climb through boulders and thick underbrush to “ a steep hill approximately 400 feet high ”. The decedent fought the fire for approximately two hours, during which time he carried on his back an Indian tank with hose weighing about 40 pounds, a long rake weighing 8 or 9 pounds and a hook. The fire was a bad one, requiring the services of the decedent and about 20 to 25 volunteer firemen to extinguish. As was his custom, the decedent stayed behind to make certain that the fire would not break out anew. He asked one of the volunteers to stay with him, saying: “ I am not feeling so good.” At that moment he collapsed and died before aid could reach him. It was this extraordinary physical exertion that ‘ ‘ precipitated the attack of coronary occlusion resulting in his death ”, a fact which the Deputy Comptroller has found. It was not‘ performed in the course of decedent’s usual customary work voluntarily undertaken ” as a majority are about to hold, but was in excess of and over, above and beyond the light duties prescribed for this decedent as a condition on which he returned to work following his disabling heart attack in 1954. As we have seen—and as the Deputy Comptroller has found—his activities were restricted “to doing only supervisory work”. “ On the basis of the evidence ” thus adduced and on the Comptroller’s own findings of fact based thereon, the only conclusion of law reasonably to be drawn therefrom was accident. While it is true accident is nowhere precisely defined, it does not follow that it is a term without meaning. It is a word in common everyday usage and is generally understood to mean an event of an unfortunate character that takes place without one’s foresight or expectation, an undesigned sudden event, a mishap, a mischance, a calamity of catastrophy, a happening not in the usual course; fortuitously, unforeseen and without cause (Webster’s Standard Dictionary, Oxford, Funk & Wagnall’s). It is a term of general import to be tested as to meaning by common usage of speech and understanding (United States Mut. Acc. Assn. v. Barry, 131 U. S. 100; Bird v. St. Paul Fire & Mar. Ins. Co., 224 N. Y. 47; Lewis v. Ocean Acc. & Guar. Corp., 224 N. Y. 18) and, as we ourselves have said, “ is to be determined not by any legal definition, but by the common-sense viewpoint of the average man” (Matter of Masse v. Robinson Co., 301 N. Y. 34, 37). While that statement was made in a case arising under the Workmen’s Compensation Law, it was neither a radical nor different enunciation of applicable law nor did we intend to confine it to the facts of that case. We deemed it a good definition then and nothing has happened in the meantime calling for a change. Section 64 of the Retirement and Social Security Law in essence simply says that a prior Workmen’s Compensation Board determination “ shall not in any respect be, or constitute a determination ” of a claim arising under the Retirement System attributable to the same accident. The statute does not say and there is nothing in its wording suggesting that the Comptroller has inherent power to disregard sound legal concepts simply because such concepts may also be applied in a compensation case, which is not at all the same as saying that he is not bound by a determination made by the Workmen’s Compensation Board in the same case. The Comptroller may not ignore commonly accepted criteria and substitute a rule of his own. When he does so, he commits error as matter of law.

Here, the forest fire leading to the decedent’s untimely death was wholly unforeseen. It was sudden, unexpected and without foreseeable cause. It was catastrophic; as the hearing officer himself described it, “ nasty ” and “ mean ”; it was an emergency and required unusual physical effort to control. The decedent was restricted to light duty because of a pre-existing heart condition, which his employer well knew. In responding to this sudden emergency, he so overtaxed his strength that he died, or, as the Deputy Comptroller himself expressed it, precipitated the attack of coronary occlusion resulting in his death Such an unforeseen, sudden and unusual event culminating in the tragic death of the principal actor was accident by any accepted criteria. Had the deceased been burned to death under the same or similar circumstances, there would be no room for reasonable men to differ. How can it be said that a coronary occlusion precipitated by this catastrophic event is any less an accident?

As has been said, the Deputy Comptroller, backed by all the testimony, both eyewitness and medical, has found causal relation to the death. In such posture, the question whether there was an accident within the statute became a question of law. The findings of the Comptroller made “ on the basis of the evidence ” require him to answer, as matter of law, that the member died “ as the natural and proximate result of an accident sustained in the performance of duty in the service upon which his membership was based ” (§ 61, subd. a). He was not free to say that, because the decedent had a pre-existing heart condition, extraordinary physical exertion in excess of his strength performed in an unforeseen sudden and unexpected emergency arising in the course of his duties resulting in death was not accident. To so determine was error as matter of law under both the statute and decisions. When the Legislature made provision for payment of accidental death benefits to a widow of a deceased employee, it contemplated that such claims would be dealt with in accordance with the evidence. It did not intend that the Comptroller or his deputy should cancel it out by making a determination contrary to the evidence and the facts as actually found. The Legislature intended that the Comptroller and his deputy—like any other trier of the fact — should make a decision on the basis of the evidence ” 61, subd. a).

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

Desmond, J. (dissenting).

I concur for affirmance with the Chief Judge and Judge Dye.

All the proof before the Comptroller’s hearing officer was that the fatal heart attack was caused by unusual work effort in an emergency forest fire situation. The hearing officer made a finding that it was so caused. Then, having found as a fact on undisputed evidence all the elements of an accidentally caused death, he “ determined ” that there had been no accident. The Appellate Division took action against this logical impossibility and legal absurdity by unanimously reversing the Comptroller’s determination on the law and directing him to make an award as he was obligated by law to do on the undisputed proof and on his own findings.

This is not a ease where a quasi-judicial tribunal exercised its statutory power in making its own choice between the available findings on disputed proof. No one disputes that power. But here the tribunal settled no dispute, resolved no conflict. It just simply refused to make an award in accord with the evidence and in accord with its own fact findings.

The only explanation for this extraordinary result is that the officer had made a general policy decision to refuse awards in all cardiac cases, regardless of proof or findings. Such an attitude or policy was of course not open to him. The idea that there is a difference in social philosophy ” between the Workmen’s Compensation Law and the Retirement and Social Security Law has never been announced by the Legislature or accepted by this court. Whatever that vague and spacious term may mean, it can hardly justify the assumption by an executive of the State of power to reject claims according to his special ad hoc views of whether the Retirement Fund should from time to time be invaded or conserved. If such power resides in the Comptroller’s deputy, the Legislature has as to this matter left without protection the more than 200,000 members of the State Retirement System.

Chief Judge Conway (dissenting).

I agree with Judges Dye and Desmond for affirmance.

It seems to me that this case was decided by the Deputy Comptroller before he came to the decision-rendering stage. What the decision had to be was conclusively determined by his own finding. He found as a fact that the activities of the deceased immediately prior to his cardiac affliction, all of which took place in the performance of duty, ‘ precipitated the attack of coronary occlusion resulting in his death.”

The statute awards accidental death benefits if the comptroller shall determine, on the basis of the evidence,” that the deceased ‘ Died * * * as the natural and proximate result of an accident sustained in the performance of duty * *

The Deputy Comptroller tells us that the activities of the deceased “ precipitated ” the attack, and few if any words could he have chosen for a more decisive indication of cause and effect. Webster’s New Collegiate Dictionary (1953) defines the verb ‘ ‘ precipitate ’ ’ thus:. “ 1. To throw or dash headlong; cast or hurl down, as from a precipice. 2. To move very rapidly; to urge or press on with haste or violence; to cause to happen suddenly, unexpectedly, or too soon * *

I will not assume that the Deputy Comptroller had insufficient vocabulary to express his findings. He found that the deceased’s heart attack was urged on with haste or pressed on with violence or caused suddenly or unexpectedly by duties he was performing as a most integral part of his job. If we need not now hold that the deceased died as the natural and proximate result of an accident sustained in the performance of duty”, then we can never in any case hold that a man who breathes his last breath because of a heart attack leaves anything by way of right against his employer for it, because it could not be held to be an occurrence in the course of his employment. That of course is contra numerous of our cases, which have had sufficient citation in the opinions of Judges Dye and Fulb to obviate repetition here. Were this a question of evidence, I would not disturb the conclusion; but the evidence invited a finding that the deceased’s activities did cause the occlusion, and the Deputy Comptroller could not and did not resist such finding. The statute does not admit, immediately thereafter, of the conclusion that deceased ‘ ‘ did not sustain an accident. ’ ’ The statute does not license the hearing officer to rewrite the dictionary.

The fire and deceased’s activities during it were as much a cause of his death as had a tree fallen on him or the flames taken hold of him. It would be no answer to say that a younger and faster man could have eluded the falling tree or reached water in time. So it is no answer to say that this man would have survived had his heart been a bit stronger. Had the State any physical requirements to impose upon those fighting forest fires, it should have insured that all such employees fulfilled them. We are not told that the deceased concealed his previous cardiac difficulties. If a man is permitted to confront duties which may constitute a strain upon him, the permitter should not punish the man’s widow because he executed those duties in disregard of the strain. The State does not contend that the deceased should have stood still at the bottom of the hill and watched the fire spread; it permitted him to function as a Forest Banger and could not then contemplate that he would not perform duties as such.

I find it difficult to appreciate the majority’s accentuation of the fact that this was deceased’s “ usual customary work, voluntarily undertaken ”. (Italics supplied.) By that it is not to be understood that he was a “ volunteer fireman” with the choice of going to the fire or not, as his whim dictated. It was deceased’s assigned task to be at those fires. On the day in question he had just begun his afternoon meal when his special radio — and he had one in his home and one in his truck with the latter in operation all times ” — called him to attend the fire in question. The call came from an observer whose duty it was to make such calls. Had deceased refused to attend the fire he might have jeopardized his position. There was nothing ‘ ‘ voluntary ’ ’ about his being there.

If ‘ voluntarily undertaken ’ ’ be read as an allusion to the fact that no one compelled the deceased to engage in such occupation, the answer is that no one in this country is compelled to work in any civilian occupation. That is no ground for denying accidental death benefits to a victim’s survivor. If a man did not build skyscrapers, or tunnels, or unload ships, he would not have fallen 40 stories, or drowned, or been crushed by a defective boom. So a peace officer would not have been shot by a thief if he had taken employment that did not compel him to pursue one. Whatever benefits there be for the survivors of such men are not afterwards denied because the misfortune that ensued was a possibility from the beginning.

Some occupations are sedentary; others involve physical labors. The health of a given individual may be below par, but nonetheless quite adequate to keep him at his job. The State’s own expert testified that it is not at all rare to advise a man who has had cardiac difficulties to return to his “ previous occupation ” and that heavy exertion is not uniformly prohibited; that the course “ would have to be left to the individual cardiologist ”; that it depends on the individual’s personality and makeup; that there are people who, if you limit them too much, you are doing more harm to them than as though you allow them to go ahead.” And the same doctor, testifying, we should remember, for the State, said of the deceased: “ This man then did well, being back at work and. carrying on his activities until the day in question, when, after attending several fires and climbing a steep hill, he collapsed.”

The advice that the deceased received and his own judgment in appraising it obviously impelled him to gauge the possibilities and to conclude that the job was not too much for him. No one can avoid the inference that the deceased felt himself able to continue his usual duties; to draw a contrary inference is to say that he went back to work with the intention of overtaxing his heart. Certainly this man was at work voluntarily; so was every man whose survivor has received accidental death benefits. Death is always brought about by the failure of some indispensable part of the being’s anatomy; the question always is: what brought on the failure? This man was not at home in bed, concluding an inactive day, when his heart gave out; he was in the very process of executing his duties. His end was brought about in the performance of those duties, a performance compelled by an accident of circumstance: “ a nasty, mean, forest fire”. That is the finding, and the conclusion of law thereafter constructs itself. The scheme of the statute, upon such finding, leaves no room thereafter for discretion; hence the reversal proposed by the majority does not amount to mere approval of a discretion lodged by statute. It amounts to the judicial delegation of legislative power to an agency. Our function is not so comprehensive, In my judgment we have no course but to affirm.

Judges Froessel, Van Voorhis and Burke concur with Judge Fuld; Chief Judge Conway and Judges Desmond and Dye dissent in separate opinions in which each concurs.

Order reversed, etc. 
      
      . See Schecter v. Equitable Life Assur. Soc. of U. S., 275 App. Div. 958, motion for leave to appeal denied 300 N. Y. 763; Wilcox v. Mutual Life Ins. Co., 265 N. Y. 665; see, also, Burr v. Commercial Travelers Mut. Acc. Assn., 295 N. Y. 294, 305; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81, 85.
     
      
      . See Matter of Masse v. Robinson, 301 N. Y. 34; Matter of Kehoe v. London Guar, & Acc. Ins. Co., 303 N. Y. 973.
     
      
      . See Matter of McCadden v. Moore, 276 App. Div. 490, affd. 301 N. Y. 760, and other cases cited, infra, p. 264.
     
      
      . Under the Retirement and Social Security Law, the fact that an employee sustained an accident bears not on coverage, but solely on the quantum of benefits to be paid; when an employee dies, his beneficiary will receive benefits even though death was not caused by an accident. Under the Workmen’s Compensation Law, however, there is no coverage whatsoever for the death of an employee (excluding eases of occupational disease) unless it was accidentally occasioned. The desire to give an employee the benefit of the statute’s coverage undoubtedly prompted the Board to utilize the more easily satisfied test of accident applied in the Masse case.
     