(dissenting). Having alleged that the action of the medical board of the New York City Retirement System in its determination was arbitrary and capricious, petitioner was properly granted an alternative writ to the end that it might be determined upon a full adducement of the facts whether he was actually disabled and, if so, whether such disability was service-incurred. He was not bound by the certificate of the medical board to that effect. (Matter of Hodgins v. Bingham, 196 N. Y. 123. See, also, Matter of Wargo v. LaGuardia, 252 App. Div. 746.)
Petitioner at all times from his first injury contended that he had been disabled by reason of service-incurred injuries. He evidenced *150Ms sincerity by making four applications for retirement on tMs ground and upon the ground that a second accident had aggravated the disabilities occasioned by the first.
So far as an employee is concerned, at least, he should not be conclusively bound by the certificate of some administrative board whose findings might be predicated upon the flimsiest evidence and without the right of the employee to introduce Ms own testimony much less to cross-examine the members of the board into whose hands Ms fate has been committed.
So far as the employee here is concerned, the finding of the medical board was tantamount merely to the opirnon of experts. Their conclusion was controverted by other evidence and, under such circumstances, there was raised a question for the jury. (Commercial Casualty Ins. Co. v. Roman, 269 N. Y. 451.) The erroneous conclusion of the medical board was a mistake of fact.
The question here is not whether, under the sections of the Admimstrative Code, the finding of the medical board must be accepted by municipal bodies or officers, but whether the employee whose fate is at stake is bound.
Petitioner upon the trial was clearly shown to be disabled and, in my opimon, there was sufficient proof to rebut the determination and finding of the medical board that the disability was not service-incurred.
The cases cited in the prevailing opinion are not here controlling. In Matter of Rosenberg v. Board of Estimate (281 N. Y. 835) the Court of Appeals merely held that, on the pleadings as presented, the Appellate Division had sufficient evidence without further adducement of facts for its decision that there was no service-incurred disability. In the case before us the pleadings raised issues properly determinable only after a trial. In Matter of Sullivan v. Board of Estimate (281 N. Y. 766), the record on the second appeal therein disclosed that the medical board had fully inqmred into the matters and that its findings were corroborated by the treatment and diagnosis given by the petitioner’s attending physician. Under such circumstances, of course, there was insufficient evidence to rebut the certificate of the medical board.
I, accordingly, dissent and vote for affirmance.
Order entered November 28, 1938, directing a trial of the issues, affirmed, and order entered March 27, 1939, directing defendants to retire petitioner for accidental disability, reversed and the petition dismissed, with costs and disbursements to the appellants.