In these circumstances the claim for disability due to occupational disease was barred by statute. (Workmen's Compensation Law, § 40; Matter of Hill v. Samaritan Hosp., 298 N.Y. 182.) Nor may claimant's employment be deemed to have been continuous with the same employer thus to lift the general time limitation provided in the section since the hiatus in the employment between his retirement and rehiring interrupted its continuity. ( Matter of Boyd v. Schaefer Brewing Co., 282 App. Div. 785.) No medical testimony was adduced at the hearings.
This case has been followed. ( Matter of Dennison v. Peckham Rd. Corp., 295 N.Y. 457; Matter of Kucharuk v. McQueen, 221 N.Y. 607; Matter of Cook v. Buffalo Gen. Hosp., 283 App. Div. 899; Matter of Diaz v. Ulster Vegetable Growers Co-op., 282 App. Div. 426, affd. 306 N.Y. 859; Matter of Hill v. Samaritan Hosp., 273 App. Div. 828, mod. on other grounds 298 N.Y. 182.) And it was decided in the Cook case ( supra) that there was no legal requirement that the award be apportioned between the general and special employers.
Jurisdictional conditions are not supplied by statutory waivers related to other matters. That the Legislature intended to impose a general jurisdictional bar to diseases not resulting in disability within the time fixed is apparent from the special treatment of the relationship between the contraction and disability arising from certain enumerated diseases in amendments on this subject, notably in the amendment to Section 40 in 1947, Ch. 624. In Hill v. Samaritan Hospital, 298 N.Y. 182, 81 N.E.2d 79, it was held within the literal terms of the statute that the twelve-month period required by Section 40 between the contracting of the disease and disablement must be shown; that disablement is related to contraction of disease and not to exposure to it. Where there has been a finding that the disease was contracted within twelve months of disablement and the finding is not erected on substantial evidence of such period of relationship, an award has not been sustained.