I agree that the evidence fails to spell out an occupational disease, and, since there is no basis for a finding that the disability was the result of an accidental injury, I favor dismissal of the claim rather than a remission to the board.
The rule enunciated by this court in Matter of Lerner v.Rump Bros. (241 N.Y. 153, 155) makes it plain that, for a disease to be classed as an accidental injury, it "must be assignable" not only "to a determinate or single act, identified in space or time," but also "to something catastrophic or extraordinary." (See, also, Matter of Woodruff v. HowesConstr. Co., 228 N.Y. 276, 278.) Claimant's disability possesses neither of those characteristics.
With both occupational disease and accidental injury eliminated as possible predicates for an award of compensation, there is no purpose to be served by remitting the matter to the board. The order should be reversed and the claim dismissed.
LEWIS, CONWAY and DESMOND, JJ., concur with DYE, J.; FULD, J., dissents in opinion in which LOUGHRAN, Ch. J., and BROMLEY, J., concur.
Order reversed, etc. *Page 410