I dissent and vote for reversal. Between decedent and this claimant, his widow, there is no privity, a term which “ denotes mutual or successive relationship to the same rights of property ” (1 Greenleaf on Evidence [15th ed.], § 189), for “ a proceeding under a claim for death benefits is not the same as a proceeding for compensation made by an employee who survives his injury but subsequently dies therefrom.” (Snow v. United States Railroad Administration, 209 App. Div. 308, affd. 239 N. Y. 528; cert. den. 266 U. S. 630.) Moreover, for the principle of res judicata to apply, the subject-matter and the parties must be the sarhe. (Utah Fuel Co. v. Ind. Comm., 67 Utah, 25; 1 Freeman on Judgments [5th ed.], § 407.)
Nor, merely because of having paid compensation to decedent, is the employer herein estopped to assert decedent’s employment in interstate commerce, since had he, or his personal representative, brought suit under the Federal Employers’Liability Act (U. S. Code, tit. 45, ch. 2), which can be maintained only where the employer is negligent, no negligence could have been predicated upon the mere fact that decedent suffered a heart attack as a result of running to the fire. (New York Central R. R. Co. v. Winfield, 244 U. S. 147.) Therefore, neither decedent nor the claimant herein has been lulled into a sense of security which has resulted in the loss of a right of action through the running of the Statute of Limitations prescribed by the Federal Employers’ Liability Act.
Hence the award under review should be reversed, with costs against the State Industrial Board, and the case remitted to the Board with instructions to afford the employer an opportunity to make proof of the issue of decedent’s employment in interstate commerce when he sustained his injury.
Hill, P. J., Crapser and Heffernan, JJ., concur with Bliss, J.; Schehok, J., dissents in a memorandum.
Award affirmed, with costs to the State Industrial Board.