I dissent from the opinion for annulment and vote to dismiss the petition upon the ground that the report of the Medical Board is not a final determination and is not reviewable by certiorari.
I concede that the report of the Medical Board to the State Comptroller dated October 10, 1936, which, as I understand it, is the so-called “ determination ” under review, is erroneous in so far as it holds that the petitioner’s disability is not the result of an accident. Under the Slattery case the Medical Board and the Employees’ Retirement System are bound by the determination of the State Industrial Board that petitioner suffered an accident and was disabled as the result thereof. However, this report does not determine petitioner’s right to be retired. This is done by the Comptroller, whose action must be based upon the report and must be in accordance therewith. However, until the Comptroller has acted no final determination has been made.
Determination annulled on the law and facts, with fifty dollars costs and disbursements, and matter remitted to the New York State Employees’ Retirement System to proceed in accordance withopinion.