(dissenting). By attaching too much importance to certain random remarks made by three important public officers of the City of New York and by according those men too little credit for responsible and conscientious performance of their official duties, a majority of this court is holding that the board of estimate abandoned its duty and denied petitioner’s application without considering the evidence bearing on the matter. The record may not be read to support such a conclusion.
*629Following the death of John Kilgus, an employee on the city’s subways, his widow, petitioner herein, sought accidental death benefits under the New York City employees’ retiremenl system. It was incumbent upon her to prove that her husband’s death was “ the natural and proximate result ” of an accident sustained by him “ while in the performance of duty ” and that it was “ not the result of wilful negligence on his part ” (Administrative Code of City of New York, § B3-33.0). The application was denied on the ground that Kilgus had been “ imbibing * * * alcohol while assigned to duty, and in violation of the Rules and Regulations of his employment”1 and that, in consequence, his death was not ‘ ‘ without wilful negligence on his part.”
This is not the first time, it is worthy of note, that the board of estimate denied petitioner’s application after a hearing. After the application had been twice denied by the medical board of the city’s retirement system — which first considers the claim in this sort of case — it came before the board of estimate in February of 1949. The board denied the application at that time — according to the sworn statement of its various members — after having ‘1 considered all the facts and evidence upon which the Medical Board acted ”. Petitioner then requested, and the board ordered, a hearing before a trial committee, which heard, sifted and analyzed 121 pages of testimony, found that Kilgus had been drunk while at work and that he was guilty of willful negligence, and recommended that the application be denied. The matter then came before the board for a second hearing, the one now under attack.
That Kilgus had partaken of a quantity of alcohol on the fatal night, in violation of regulations, there can be little doubt. In the course of the extensive medical testimony taken at the trial committee’s hearings, Dr. Alexander 0. G-ettler, a toxicologist in the city medical examiner’s office, who is recognized as an outstanding expert, testified that chemical analysis *630of Kilgus’ body revealed more than 3-plus alcohol, namely, .38%, in his liver, indicating a similar quantity in his brain; and that such analysis not only demonstrated intoxication — with its concomitant “ muscular incoordination and disturbed senses * * * disturbed equilibrium and a staggering gait” — but what was no less important, the imbibing of alcohol by an employee while on his job.
There was contending testimony, on petitioner’s behalf, also by an expert, to the effect that 3-plus alcohol in the liver does not necessarily indicate intoxication since the amount of alcohol in the brain might be less than that in the liver. Other witnesses, who had seen Kilgus that night — though none later than an hour and a half before he was found lying upon the subway’s third rail — testified that when they saw him he did not stagger or speak incoherently or smell of alcohol. Relying on the evidence adduced in her support, petitioner argues here, as she did before the board, that the rules only forbade excessive drinking, and that it was not shown that her husband had imbibed more than moderately. In addition, she objected to the admission of Dr. Gettler’s testimony concerning the amount of alcohol in the deceased’s liver, on the ground that the liver had not been properly identified as Kilgus ’ and that the doctor’s position in the office of the city medical examiner disqualified him from testifying.
As indicated, the essence of petitioner’s case on the merits was presented, and forcefully and fully, with an extensive discussion of the evidence on which it rested, in the oral argument of petitioner’s counsel at the hearing before the board. Moreover, and this is of the utmost significance, each member of the board had been given, some months prior to this hearing, not only a résumé of the testimony before the trial committee, but also the full stenographic transcript of that evidence and all the exhibits. In the verified answer, it is explicitly and categorically asserted — and these statements stand undenied — that the board “ examined petitioner’s application, the proofs, testimony and exhibits, the repbrts of the Medical Board, and the report, findings and recommendation of the Trial Committee ”, and that the board’s determination denying the application “ was [its] considered judgment * * * rendered in *631good faith after full and careful consideration of the entire record ”.2
In the face of this procedure and these sworn recitals, I do not understand, as I above observed, how it may be said, with any basis or warrant, that the board did not consider the evidence or that its members abdicated their decisional duty and simply rubber-stamped the determination previously made by the trial committee.
Once it appears that a transcript of the record containing the testimony and evidence adduced before the hearing officer had been submitted to the administrative agency making the determination, the question whether or not the latter actually considered the evidence and the contentions of the parties is normally not a matter for judicial scrutiny. (See, e.g., Matter of Weekes v. O’Connell, 304 N. Y. 259, 265; Matter of Joyce v. Bruckman, 257 App. Div. 795, 798; United States v. Morgan, 313 U. S. 409, 422; Willapoint Oysters v. Ewing, 174 F. 2d 676, 696, certiorari denied 338 U. S. 860; National Labor Relations Bd. v. Jasper Chair Co., 138 F. 2d 756, certiorari denied 321 U. S. 777; Norris & Hirschberg v. Securities & Exch. Comm., 163 F. 2d 689, 693.) The administrative action has “ a quality resembling that of a judicial proceeding” (Morgan v. United States, 298 U. S. 468, 480), and it is “ not the function of the court to probe the mental processes of the * * * [deciding officer] in reaching his conclusions ” (Morgan v. United States, 304 U. S. 1, 18; see, also, United States v. Morgan, supra, 313 U. S. 409, 422). Accordingly, absent an express admission that the record has not been read (see Matter of Joyce v. Bruckman, supra, 257 App. Div. 795), it must be presumed that the evidence has been studied to the extent necessary to reach an informed and independent judgment. We recently said as much in the Weekes case (304 N. Y. 259, 265):
“we do not inquire into the degree of reliance placed by the members of the Authority upon such internal assistance; the extent to which independent study of the evidence in *632the record is necessary to the required exercise of informed judgment must be left to the wisdom and practical good sense of the commissioners themselves.”
No extended argument or elaboration is necessary to establish that it would be destructive of administrative responsibility to require the deciding officer to take the stand and testify as to the extent to which he read the record, the degree of reliance he placed upon his associates’ and subordinates’ summaries and reports, and whether or not he read the briefs submitted to him by the parties. Where such an inquiry is sought by a party against whom a quasi-judicial determination has been made, the courts, as a matter of sound policy, will refuse to undertake it. (See United States v. Morgan, supra, 313 U. S. 409, 422; Norris & Hirschberg v. Securities & Exch. Comm., supra, 163 F. 2d 689, 693; National Labor Relations Bd. v. Baldwin Locomotive Works, 128 F. 2d 39.) Similarly, upon judicial review of administrative determinations, “ where the Board declares that it has considered ‘ the entire record in the case,’ it cannot be said that the Board did not consider the evidence, and we must accord its decision the presumption of regularity to which it is entitled ”. (National Labor Relations Bd. v. Jasper Chair Co., supra, 138 F. 2d 756, 758, certiorari denied 321 U. S. 777.)
The two cases relied upon by the majority, Matter of Daley v. Board of Estimate of City of N. Y. (267 App. Div. 592), and Matter of Weekes v. O’Connell (supra, 304 N. Y. 259), do not derogate in any way from these principles, nor do they afford any support for what is now being decided. In neither of them did the administrative agency have before it a transcript of the evidence upon which its decision purportedly rested. In Daley, the court stated that “ none of the sworn statements ” supporting petitioner’s claim “ was placed before the Board of Estimate ” (267 App. Div. 592, 597) ; indeed, it was explicitly noted, the medical board “ withheld the facts upon which its recommendation was based ’ ’, setting forth only its conclusions, and the board of estimate “ simply accepted those conclusions ” (p. 598). And the procedure in the Weekes case was even more egregious: the order of the State Liquor Authority was made one hour after its hearing commissioner had concluded his hearings, was predicated on findings and conclusions identical with those of the subordinate officer and, concededly, was made *633before any transcript or record of the evidence before him had been furnished the agency. In both cases, therefore, it was indisputable that the body charged with the duty of decision had done nothing but blindly follow the determination of its subordinate officer.
In point of fact, it is our decision in Weelces, resting as it does on the absence of a record before the deciding body, that most strongly points the error of appellant’s position. We there wrote that “ The mere availability of such a record tends to guarantee independent and informed appraisal of the proofs and of the contentions of the parties ” (304 N. Y., at p. 266). And, beyond that, the court was careful to point out that, where a transcript of the evidence taken by the hearing officer was made available, “we do not inquire into the degree of reliance placed * * * upon such internal assistance”, for “the extent to which independent study ” of the record is necessary “ must be left to the wisdom and practical good sense of the commissioners themselves ” (p. 265).
Even if we were to disregard the presumption of regularity, and even if we were to attach no weight to the sworn statement of the members of the board of estimate that they fully considered the record, an examination of what transpired at the hearing serves to afford still stronger basis for sustaining its action. The transcript of that hearing, covering 22 closely typewritten pages, demonstrates that every bit of important evidence was fully presented through the extensive oral arguments of their respective counsel. As must be manifest, where virtually everything embodied in the record before the trial committee has been presented orally to the deciding agency — and that was not the case in either Weehes or Daley — a petitioner may not be heard to claim that the agency failed to make an independent value judgment. (See National Labor Relations Bd. v. Lane Cotton Mills Co., 108 F. 2d 568; cf. Morgan v. United States, supra, 304 U. S. 1, 18; Owens v. Battenfield, 33 F. 2d 753, certiorari denied 280 U. S. 605.)
Consequently, to rule that the board failed in its duty and merely espoused the conclusions of its committee, a court must presume, not only that the members of the board failed to examine the record, but also that they closed their ears to the oral presentation of the evidence and its analysis by counsel. Quite obviously, nothing of the sort occurred. The transcript *634of the hearing reveals many searching questions posed by the board members,-and the lively discussion by all present clearly evinces considerable familiarity with the case and its issues.
However, I go even further. Even if it were proper for us to “ probe the mental processes ” of the board and its members, the excerpts from the colloquy quoted in the majority opinion would furnish no warrant for the court’s decision.
There is no claim that any one of the three officers, from whose remarks the opinion quotes (pp. 625-626), acknowledged or even intimated that he had failed to consider the transcript of the testimony taken before the trial committee. As a matter of fact, only one of the board members, the President of the Borough of Manhattan, had not examined the record, and he explicitly noted the fact, announcing that, since he would first like to examine it, “I will refrain from voting.” His action is highly enlightening, for it indicates precisely how a responsible official would conduct himself had he not considered the record; and, I suggest, it is exactly what his associates would have done had they been in a position similar to his.
In no sense does the record indicate that any member of the board who voted on the petitioner’s application neglected to exercise an informed and independent judgment. The three quoted excerpts are at best ambiguous and cannot be properly assessed unless considered in the context of the entire hearing. For example, as to the second item (supra, p. 626), it is plain that that official was merely seeking to point out, and correctly, that, insofar as a conflict in the testimony and the credibility of witnesses were concerned, the trial committee’s appraisal and evaluation, entitled as they were to weight, should be preferred, and that, insofar as questions were posed involving the admissibility of evidence, it was better that they be passed upon, as questions of law, by the court.
In any event, insofar as any of the remarks quoted in the majority opinion appear to place undue reliance on the views of the trial committee or on subsequent court review, they merely reflect one side of a thorough and thoughtful interchange of views concerning the nature of the board’s function and the scope of court review. Thus, the transcript reveals that counsel for both parties, as well as the board members, addressed themselves to the board’s duty of independent decision at some length, with an extensive and illuminating analysis of the Daley case. The quotations represent only the more ineptly phrased or *635ambiguous remarks that were made during the course of discussion, but these were fully counterbalanced by the statements accurately describing the board’s duty, which must have corrected any erroneous impression that might have been created. For instance, the third of the quoted remarks (supra, p. 626) immediately called forth, from the President of the Borough of The Bronx, the observation,
“ I might say on that * * * the fact * * * [that the trial committee has] heard the testimony does not in any way bind. After all, the responsibility to make the decision is with this Board * * *. The selection of and the appointment of a Trial Commission [sic] was a medium through which to lighten the work, to go into the facts, but by no means is it binding ”.
From all the discussion there unquestionably emerged a fair and correct picture of the board’s proper part and function. Under these circumstances, I would say, as did a federal Court of Appeals, “We have neither moral nor legal right to presume that only those who occupy judicial office respect their obligations and perform their official duties honestly, sincerely and conscientiously.” (Willapoint Oysters v. Ewing, supra, 174 F. 2d 676, 696, certiorari denied 338 U. S. 860.)
Beyond all this, the court’s present decision cannot help but have a tendency to discourage the kind of thoughtful inquiry and frank colloquy that here occurred, lest something be said in the course of discussion and debate that may be taken to indicate that the agency misunderstood its function or abdicated its duty.
In sum, then, since the evidence establishing that Kilgus had been intoxicated and that his death was caused by his own willful negligence was exceedingly strong, and since no justification exists for a ruling that the board of estimate rubber-stamped the trial committee’s decision, its determination, unanimously affirmed by the Appellate Division, should be upheld.
Dye, Froessbl and Van Voorhis, JJ., concur with Conway, Ch. J.; Fuld, J., dissents in an opinion in which Desmond, J., concurs; Burke, J., taking no part.
Order reversed, etc.
. Since there was no reply interposed by petitioner, the law seems settled that the question whether the board sufficiently considered the evidence was never properly raised or posited. (See, e.g., Matter of Hines v. La Guardia, 293 N. Y. 207, 215.) However, I disregard that obstacle — which might well be deemed insuperable — and consider the argument advanced by petitioner that the members of the board of estimate abdicated their duty of decision.