The opinion
Lehman, J.
(dissenting). I cannot agree with the statement in the prevailing opinion that “ the contrasted provisions, however, are in every instance narrower in the Compensation Law requirements than in the retirement provision.” The contrary, indeed seems to me to be true.
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It is evident that every injury arising
“
in the performance of duty ” would also be an injury
“
arising out of and in the course of employment,” but the converse is not so evident, and certainly the exclusion from compensable injuries of those which are
“
solely occasioned by intoxication * * * or by willful intention of the injured employee to bring about the injury or death of himself or another ” is narrower than the exception in the retirement act of injuries occurring through the “ willful negligence ” of the member.
In any event, the provisions of the two statutes are not identical and if the Legislature had intended that there should be but a single trial of the issues of right to an award under the Compensation Law and right to benefit under the retirement system, it would naturally have provided that the
same
issues would be determinative of both rights; nor can I find in the provisions of the Civil Service Law the slightest indication of such an intent.
The retirement system was not a party to the proceedings before the Industrial Board, though it may be that notice of the proceedings given to the Board of Estimate was notice to it. An adjudication does not bind a party who has notice of the proceedings unless, as in the cases cited by Judge Crouch, that party could prosecute or defend the proceedings to “ establish and protect his own right,” or, unless such party assisted in the prosecution or defense “ in aid of some interest of his own.”
(Souffront
v.
La Compagnie des Sucreries,
217 U. S. 475, 487 .) Here I can find no basis for any conclusion that the retirement system could have been heard in opposition to the claim for compensation. An award would reduce the amount payable from the retirement fund but would not be payable out of such fund. The retirement system, therefore, had no interest of its own to serve by opposing an award. The instruction of the Board of Estimate to the claimant to initiate her claim by proceedings before the Industrial Board amounted to no more than notice that even if the claimant was entitled to additional retirement benefits
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she should first establish the amount which would in such event be deductible from such benefits. It is difficult to see how by such instruction the retirement system gained or lost any rights. The Board of Estimate could not remit to another tribunal determination of any question which the statute required the Board of Estimate to decide. If the Legislature had provided that an adjudication of the issues in the compensation proceedings should finally determine also the right to a retirement award, then it might be said that the Legislature also intended that when the retirement system had notice of these proceedings it might oppose them. In the absence of such provision there can be no ground for holding the adjudication binding upon the retirement system.
The order of Appellate Division should be reversed and the determination affirmed.
Grane, Ch. J., O’Brien, Hubbs and Loughran, JJ.; concur with Crouch, J.; Lehman, J., dissents in opinion, in which Finch, 'J., concurs.
Order affirmed.