(dissenting). I would affirm. Neither the law, statutory or decisional, nor equitable considerations confer upon the Special Disability Fund the right to a lien which would reduce the wrongful death recovery awarded for the benefit of the widow and children..
The provisions of subdivision 1 of section 29 of the Workmen’s Compensation Law, as written, do not provide for a lien for the payments made and to be made from the Special Disability Fund. A statutory lien extends solely in favor of a person or insurance carrier “ liable for the payment of” the workmen’s compensation benefits awarded to the plaintiff herein. The *135Special Disability Fund is not so liable; it is liable only for the reimbursement of the insurance carrier for compensation benefits paid by it after the expiration of 104 weeks. (Workmen’s Compensation Law, § 15, subd. 8, par. [e].) Furthermore, the measure of the wrongful death recovery for the benefit of the widow and children is expressly fixed by statute (see Decedent Estate Law, § 132) and such recovery may not be diminished by broadening the unambiguous terms of subdivision 1 of section 29.
It is true that, on the basis of the record, the pre-existing heart condition and the alleged malpractice of the wrongful death action defendant were both contributing causes of the decedent’s death. But the portion of the compensation award payable from the Special Disability Fund on account of the pre-existing permanent health impairment and the wrongful death judgment represent separable recoveries covering independent losses and items of damage. The Special Disability Fund is set up to absorb the portion of compensation benefits which was attributable to the previous permanent disability. “Apparently recognizing the difficulties of proof required to demonstrate what portion of the disability is attributable to the second injury, the Legislature, by the present statute (L. 1947, ch. 431), has allocated the first 104 weeks of disability to the second injury, and directed that the payment of subsequent compensation be reimbursed out of the special fund.” (Matter of Mastrodonato v. Pfaudler Co., 307 N. Y. 592, 596).
I would hold that the proceeds of the action for wrongful death as a recovery for the “ second injury ” is not a recovery ‘ ‘ in tort for the same injury that was a predicate for the payment of compensation benefits ” from the Special Disability Fund. (Of. Matter of Petterson v. Daystrom Corp., 17 N Y 2d 32, 39.) The wrongful death recovery was expressly limited to damages consisting of “ compensation for the pecuniary injuries, resulting from the decedent’s death”, to the widow and children. (Decedent Estate Law, § 132.) In fixing such pecuniary loss, the condition and health of the decedent and his life expectancy were relevant factors (see Rothman v. St. Barnabas Hosp. for Chronic Diseases, 20 A D 2d 531), and the existence of the previous physical impairment would tend to reduce the recovery for such loss. Certainly, the recovery here for the benefit of the widow and children did not include compensation for loss or injury arising from the pre-existing heart condition. Thus, they are entitled to receive the compensation allocated by the Legislature for the pre-existing condition “undiminished by the amount of a recovery at law ”. (Cf. Matter of Petterson v. Daystrom Corp.. supra, p. 39.) They are entitled to receive *136such compensation as a vested right fixed by the Workmen’s Compensation Board award not challenged here. To impose a lien upon the wrongful death recovery in favor of the Special Disability Fund for the compensation paid by it is to improperly reduce the recovery on account of an item of damage not included therein.
Botein, P. J., Stevens and McGivern, JJ., concur with McNally, J.; Eager, J., dissents in opinion.
Order entered on October 20, 1967, modified, on the law, to the extent of providing for payment to the lienor-appellant of the sum of $12,870 prior to distribution of the recovery to the decedent’s distributees, and, as so modified, affirmed, without costs and without disbursements.