Opinion
March, 1932.
Present — Sears, P.J., Crouch, Taylor, Edgcomb and Crosby, JJ.
Judgment modified by striking out the provisions relating to award, and as so modified affirmed, without costs of this appeal to either party.
The record shows a proceeding before the State Industrial Board, but it does not show that the proceeding has been concluded nor that a question of reformation of the insurance policy or any matters involving equitable relief were presented to the Industrial Board or passed on by it. This body had jurisdiction to determine all equitable questions claimed to be involved in the proceeding before it ( Royal Indemnity Co. v. Heller, 256 N.Y. 322); but in the absence of anything of record to show that any such questions were before the Board, the Supreme Court under its long existing equity jurisdiction was open to the plaintiff seeking such relief. Therefore, since the judgment appealed from grants reformation upon sufficient evidence, it should to that extent be affirmed. However, in so far as it assumes to make an award to plaintiff against defendant the judgment under the circumstances is erroneous, since the Industrial Board apparently still has control of the proceeding and still has the exclusive right to make any awards. (State Const. art. 1, § 19; Shanahan v. Monarch Engineering Co., 219 N.Y. 469.) All concur.