280 A.D. 942 | N.Y. App. Div. | 1952
In a proceeding under article 78 of the Civil Practice Act, to review the determination of the board of estimate, City of New York, as head of the New York City Employees’ Retirement System, in denying petitioner’s application for an accidental death benefit (Administrative Code of City of New York, § B3-33.0), order annulling the determination reversed on the law, with $10 costs and disbursements, and the determination of the board confirmed. Inasmuch as the hearing was pursuant to statutory direction, the proceeding should have been transferred to the Appellate Division, but this court has considered the proceeding de novo on the merits. (Civ. Prae. Act, § 1296.) The record as presented does not disclose such a preponderance of proof in petitioner’s favor as to require or authorize a contrary determination by the court. (Civ. Prae. Act, § 1296, subd. 7; Matter of Burke v. Bromberger, 300 N. Y. 248.) Nolan, P. J., Carswell, Johnston, Adel and Schmidt, JJ., concur.
