(dissenting). Claimant, a young man twenty-three years old, having completed his day’s work on March 9, 1950, cotieededly checked out and departed from the India Street Pier in Brooklyn where he worked as a longshoreman. While walking in front of the Java Street Pier, just before 6:00 p.m., he was run down and horribly maimed by a five-ton automobile crane owned and operated by his employer, and is totally incapacitated. Most of the time until July, 1951, claimant was con*54fined in various hospitals, and was in no condition physically, mentally or emotionally either to appear at any hearing or to give any consideration to the protection of his legal rights.
Claimant never filed a notice of claim with the Workmen’s Compensation Board. But on March 10th, the very day after the accident, claimant’s employer, whose compensation insurance carrier and liability insurance carrier were the same company, promptly filed a report of injury and voluntarily commenced disability and medical payments. The board held several hearings on the claim, but at no time did it take any testimony or receive any evidence other than the employer’s two reports of injury and the several doctors’ reports. Nevertheless, despite this complete absence of any legal evidence, the board found that the accident had arisen out of and in the course of employment, thus confining claimant exclusively to his compensation remedies. Claimant, who desires to prosecute a common-law negligence action against his employer for acts not arising out of his employment, now directly attacks the board’s jurisdictional finding that a claim he never filed resulted from an accident which arose out of and in the course of his employment.
The board was in error when it stated that in Doca v. Federal Stevedoring Co. (305 N. Y. 648) this court held that it would not go behind the board’s finding of accident arising out of and in the course of employment; all that we held in that case was that the employer’s injury report and voluntary payment of compensation conferred an initial jurisdiction on the board which could not be collaterally attacked in a common-law action. However, on a direct appeal from the board’s decision, such as is now before us, a finding that the accident arose out of and in the course of employment, like any other finding of fact, may be sustained only if it is supported by substantial evidence.
Claimant’s failure to appear at the hearings is not evidence. His acceptance of compensation awards is not evidence. The presumption authorized by section 21 of the Workmen’s Compensation Law is not by itself evidence. None of these can be substituted for evidence. As for the hearsay reports, they can be given probative effect only if corroborated by a residuum of legal, or “ common law ”, evidence. (Matter of Altschuller v. Bressler, 289 N. Y. 463, 468-471; Matter of Carney v. General *55Cable Corp., 278 App. Div. 868, affd. 303 N. Y. 885; Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 439-441; Matter of Belcher v. Carthage Mach. Co., 224 N. Y. 326, 330; Van Cise v. Standard Oil Co. of N. Y., 209 App. Div. 838, affd. 239 N. Y. 587; Matter of State Treasurer v. West Side Trucking Co., 233 N. Y. 202.) But in this record there is no such corroborating legal evidence. Thus the hearsay reports, as well, are not evidence. Since there is nothing else in the entire record, it is obvious that there is no evidence whatsoever to support the board’s jurisdictional finding.
The prevailing opinion asserts (without citation of authority) that the employer’s reports of injury, which we have held to be probative evidence against an employer on the jurisdictional issue, should be likewise regarded as against the employee. But such reports bind an employer because they are his admissions, and are therefore within a well-recognized exception to the hearsay rule. When offered against the employee, however, no such exception obtains, and the employer’s reports come within the salutary policy, as well as the letter, of the rule which deprives them of probative value.
Matter of Ahern v. South Buffalo Ry. Co. (303 N. Y. 545, affd. 344 U. S. 367) is not controlling here. In that case, the “ waiver ” was expressly authorized by section 113 of the Workmen’s Compensation Law which applies only when the New York State compensation award system might conflict or overlap with Federal compensation programs. In such a case, a party may waive his rights under the Federal program and rely solely upon the New York Workmen’s Compensation Law. By doing so he submits to the jurisdiction of the board. But there is no similar provision in our Workmen’s Compensation Law authorizing a waiver of a claimant’s common-law remedies against his employer; indeed, such a provision would often, as possibly in this case, confer an unauthorized jurisdiction on the board. In that case, moreover, the evidence showing the employer’s intent to waive his Federal rights was virtually indisputable. Such is not the case here.
Claimant maintains that the notices of hearings allegedly mailed to his home were never in fact received by him. It is true that the employer paid weekly compensation benefits, as well as some $14,000 on his medical bills. Claimant asserts, *56however, that the weekly checks were sent to his home and cashed by his wife while he was hospitalized, and only two checks were cashed by him, after which he refused any further payments. This cannot justify or excuse the board’s failure to receive testimony or other legal evidence before finding the necessary facts. Neither claimant’s failure to appear at the compensation hearings nor his acceptance of payments made pursuant to an order entered without jurisdiction can serve to establish the facts essential -to that jurisdiction. Since there is no evidence to support the finding that the accident arose out of and in the course of employment, the board had no jurisdiction to enter the award appealed from, thereby depriving him of his lawful right to institute a common-law action.
The order of the Appellate Division should be reversed, the board’s order set aside, and the matter remitted for further proceedings not inconsistent with this opinion.
Lewis, Ch. J., Dye, Fuld and Van Voobhis, JJ., concur with Desmond, J.; Fboessel, J., dissents in an opinion in which Conway, J., concurs.
Order affirmed.