Opinion
Argued April 6, 1945
Decided May 17, 1945
Appeal from the Supreme Court, Appellate Division, Third Department.
John M. Cullen for appellants.
Nathaniel L. Goldstein, Attorney-General ( Roy Wiedersum and Orrin G. Judd of counsel), for State Industrial Board, respondent.
John J. Scully and Harold S. Van Schaack for claimants, respondents.
The Industrial Board having denied an award for death benefits, the Appellate Division reversed this decision and remitted the matter to the Board for further consideration. The Board thereafter, acting upon a resolution declaring its opinion that the intent of the Appellate Division was "that the case be referred back to the Industrial Board for the purpose of making an award", granted an award solely upon the assumed direction of the Appellate Division, without any reconsideration of the issues previously determined in favor of the Special Fund for Reopened Cases.
Under these circumstances, we are constrained to reverse the decision of the Appellate Division affirming the award and to remit the matter to the Board for a determination of the issues. ( Matter of Volinsky v. Reliable Waste Rag Co., 291 N.Y. 224; Matter of Daus v. Gunderman Sons, Inc., 283 N.Y. 459.)
The order of the Appellate Division and the award of the State Industrial Board should be reversed, with costs in this court and in the Appellate Division against the State Industrial Board, and the matter remitted to the State Industrial Board for determination of the issues.
LEHMAN, Ch. J., LOUGHRAN, LEWIS, CONWAY, DESMOND, THACHER and DYE, JJ., concur.
Ordered accordingly.