(dissenting). This appeal presents a question as to the construction to be accorded to subdivision b of section B3-45.0 of the Administrative Code. If, as the majority opinion suggests, the purpose of that section is to prevent the payment by the city of more than one half of the deceased employee’s salary, irrespective of the number of the recipients of such payment and their relationship to the deceased, then there must be a reversal. On the other hand, if the purpose of that section, as we think more probable and more consonant with fairness and justice, is to prevent the employee (in a disability case) or any one of his dependents (in a death case) from receiving a double award — both under the pension law and also under the compensation law — then the result reached below is correct and must be affirmed.
In the case at bar, the widow is not claiming that she should receive a double award. Indeed, it has been settled by our decision in Matter of Daley v. O’Dwyer (298 N. Y. 890) that subdivision b of section B3-45.0 of the Administrative Code forbids the receipt by a dependent of such double award on account of the death of the same person. Here, however, all that the widow is claiming is that she should receive the full amount required to be paid under section B3-33.0 to her, as widow, as accidental death benefits under the pension system, without deduction of the additional amounts required to be paid under subdivision 4 of section 16 of the Workmen’s Compensation Law to the dependent child and the dependent father *378of the deceased employee. She is not seeking a double award; she is merely asking for the amount which the Legislature has directed to be paid to the surviving wife of a city employee who is accidentally killed in the performance of his duty.
Subdivision b of section B3-45.0 does not, in our judgment, prevent such payment. The section reads as follows: “ b. If an amount which is payable throughout a period under the provisions of the workmen’s compensation law equals or exceeds the amounts otherwise payable during the same period out of the moneys provided or to be provided by the city under the provisions of this title on account of the same disability of the same person, no payment shall be made to such person under the provisions of this title during such period nor thereafter, until the total amount of such omitted payments, together with the regular interest which they would have accumulated, equals the amount paid under the workmen’s compensation law, together with the regular interest which it would have accumulated. If an amount which is payable throughout a period under the provisions of the workmen’s compensation law be a percentage less than one hundred per cent of the amounts otherwise payable during the same period out of moneys provided or to be provided by the city under the provisions of this title on account of the same disability of the same person, there shall be paid during such period as it becomes due under the provisions of this title, in lieu of each amount otherwise payable, the percentage thereof which is the difference between such lesser per cent and one hundred per cent.”
The section was probably drafted with only the employee himself, disabled but alive, in mind, for the language used therein speaks of “ amounts * * * payable * * * on account of the same disability of the same person ” and states that 11 no payment shall be made to such person ”. Nevertheless, as noted, we held in the Daley case (supra) that “ disability ”, as used in subdivision b of section B3-45.0, must be taken to include “ death ”, in order to effectuate its purpose to prevent receipt of a double award by a single beneficiary.
Simply stated, we think the first sentence of the section, as applied to a death case, means this: If the amount payable to a beneficiary under the compensation law equals or exceeds the amount otherwise payable to that beneficiary under the pension *379law, no pension payments are to be made until the total of the omitted pension payments equals the amount paid under the compensation law. We think the second sentence of the section rr>3ans this: If the amount payable to a beneficiary under the compensation law is less than the amount otherwise payable to that beneficiary under the pension law, only so much of the pension payments are to be made which will be sufficient, when combined with the compensation award, to total the amount normally ipaid under the pension law. Thus, it seems to us that the evident purpose of the statute is twofold: (1) to make certain that the beneficiary receives a single full award, and as a corollary to that, (2) to make certain that the city, which provides the money for both compensation and pension payments, will not have to pay a double award to the same beneficiary on account of the same death. In other words, the section does not purport to set a maximum limit upon what the city is permitted to pay. It merely sets a limit upon the maximum amount any one beneficiary can receive.
Affirmance in the case at bar is completely in accord with the .language and intent of this section, for the petitioner widow will be receiving a single award under the pension law; she will receive nothing under the compensation law; and the city will not be making a double award to the same beneficiary on account of the same death. It is true that the city will be required to pay an additional amount to other beneficiaries (viz., the dependent child and the dependent father) under the compensation law and that the total amount thus paid will be greater than one half of the deceased’s final salary or wage, but such a result is not expressly forbidden by any provision of the Administrative Code, and we see no reason for reading such a prohibition into the code by judicial construction. If the total amount of money payable to the beneficiaries of a deceased employee were to be limited to one half of his final salary, it would have been a simple matter for the Legislature to make .a provision to that effect. However, it has not done so. Instead, all that it has done is to provide that no double award may be made to the same beneficiary on account of the same death.
The provisions of section 85 of the Civil Service Law differ materially from the provisions of subdivision b of section B3-45.0 of the Administrative Code, and it is not now necessary *380to determine what the result would be if the problem posed by the instant case were presented under the Civil Service Law provision. Suffice it to say that no case in this court has yet held that a widow is not entitled to full payment under the pension law, merely because other dependents of the deceased employee are entitled to payments under the compensation law. The case cited by the majority, Matter of Dalton v. City of Yonkers (262 App. Div. 321, affd. 287 N. Y. 592), was similar to Matter of Daley v. O’Dwyer (supra) in that it held that a single person could not receive a double award on account of the same death or disability.
We thus agree with the courts below that the payments to the dependent child and father of the deceased employee under the compensation law should not have been deducted from the payment which is required to be made to the widow alone under the pension law. The widow’s pension under section B3-33.0 of the code amounts to $1,534.15. If the compensation awards to the widow’s child and father-in-law ($218.40 and $546, respectively) are deducted therefrom, the widow will be receiving only approximately one half (viz., $769.75) of the amount which the' Legislature, in its wisdom, determined would be necessary for her support after the death of her husband.
The order of the Appellate Division should be affirmed, with costs.
Lewis, Desmond, Fuld and Froessel, JJ., concur with Dye, J.; Conway, J., dissents and votes for an affirmance in an opinion in which Loughran, Ch. J., concurs.
Orders reversed, etc. [See 302 N. Y. 841.]