By findings dated July 31, 1945, it was determined that the employee, on June 28, 1933, became disabled because of lead poisoning, an occupational disease, and an award was made against the employer and carrier, appellants, they asserting that if any award be made it should be payable from the Special Fund (Workmen’s Compensation Law, § 25-a). The award against the employer and carrier was made upon the ground that within seven years after disability, and on September 28, 1939, the mother of claimant made application for a reopening of the case and a reconsideration of the earlier determination, and that her application was still pending until the award was finally made. The board thereby made a determination of fact, possibly a mixed question of law and fact, that the attempted rejection of the mother’s application by an examiner, in a letter dated October 6,1939, was ineffective. (Workmen’s Compensation Law, §§ 25-a, 123.) An examiner has only the power granted' by the board under the authority given by the Legislature to make rules; (Workmen’s Compensation Law, § 117). On July 2, 1943, a decision was made by a member of the board concerning the attempted rejection. He states: “ In view of the timeliness of the application as made on behalf of the claimant on 9/28/39, and such date being in the seven year period from the date of accident, we find and hold that the carrier is the responsible party for compensation, ;if any, found to be due under this claim, and, therefore, discharge the Special Fund for Reopened Cases from liability and further notice.” With the board power granted to the board concerning its calendar and department generally, and also in *619connection with the reconsideration of cases, we should hesitate to interfere with a determination of fact, and extend the already lengthy and tortuous record in this matter, now more'than twelve years old.
The award should be affirmed.
Foster and Lawrence, JJ., concur with Brewster, J.; Hill, P. J., dissents in a memorandum in which Heffernan, J., concurs.
Award and decision reversed and matter remitted to the Workmen’s Compensation Board for direction of payment of the award from the “ special fund for reopened cases ” pursuant to section 25-a of the Workmen’s Compensation Law, with costs against the former State Industrial Board, now the Workmen’s Compensation Board.