(concurring). - I concur in Judge Heeeernan’s opinion to reverse upon the ground that there was no question lawfully before the appeal board for its decision as to claimant’s dissatisfaction with the initial determination which was confirmed by the referee.
No dispute existed over the fact that claimant had failed to comply with the rule duly established by the Commissioner, the integrity or propriety of which has not been challenged. The statute had authorized the rule. It had the force of law. The statute forbade the benefits claimant sought if he failed to comply with the rule. His appeal was that because of certain facts and circumstances the application of the rule in his given instance should be suspended; that he be forgiven or excused for his default in compliance. He asked for an act of grace. This is the relief 'the appeal board granted him. Neither in the statute nor in the rules and regulations made by the Commissioner does it appear that there are any provisions for the amelioration thus sought and which has been allowed. Neither the referee nor the appeal board has been given any power to rescind, amend or suspend the rules made by the Commissioner. The power to suspend a rule, because it applies harshly, or for any other reason, amounts virtually to a rule-making power. The initial denial of claimant’s prayer must, I think, be considered to be an act of administration. The initial determination was merely to the effect that the established rule should be enforced. To hold that the appeal board has jurisdiction to decide that it should not be, would be to grant them a rule-making power which is only vested in the • Commissioner. An orderly and just administration of the law (Labor Law, art. 18) requires that the different fields of official functioning which it marks out should be kept clearly defined.
I find nothing in the statute which defines with any definiteness the jurisdiction of the referees or the appeal board. This,. I believe, is what has made the given case somewhat puzzling. The statute does say (Labor Law, § 533, subd. 2) that, unfettered by common-law or statutory rules of evidence or technical rules of procedure, they may conduct hearings and appeals in “ such manner as to ascertain the substantial rights of the parties.” But I cannot find in this power given as to the ‘ ‘ manner ’ ’ of ascertaining the rights referred to, that there was given any power either to ordain or prescribe them. The administration *487of the law (Labor Law, § 18) involves so complex and vast an amount of detail that without rules and regulations it would be chaotic. Proper rules duly established must necessarily be rigid. The power to make and the power to enforce them must come under one head. Such is vested in the Commissioner. Since they are essential to proper administration I fail to see how any party may have a substantial right to either suspension •or relaxation in a given case. If it be deemed that an act of grace is due, and that policy permits it, such, it seems to me, can only be termed a pure act of administration, the power to exercise which is vested solely in the Commissioner.