Opinion
Argued September 19, 1967 Reargued November 29, 1967
Decided December 6, 1967
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Anne M. Powell, Joseph Dean Edwards, Milton Peckman and Robert N. Van Benthuysen for appellants.
Louis J. Lefkowitz, Attorney-General ( Henriette Frieder, Ruth Kessler Toch and Daniel Polansky of counsel), for Workmen's Compensation Board, respondent. John M. Cullen for Special Fund for Reopened Cases, respondent.
No appearance for claimant-respondent.
Upon reargument: Order affirmed, with costs, in the following memorandum: Appellants have conceded that the provisions of the Workmen's Compensation Law (§ 123) would not be applicable here if the board's action in rescinding its prior order of closure was proper. We accept the appellants' concession for the purpose of deciding this case (see Cohen and Karger, Powers of the New York Court of Appeals [Rev. ed., 1952], p. 629). Since we believe that the Appellate Division correctly held that the Workmen's Compensation Board could reopen nunc pro tunc a case that was improperly closed, we affirm the order from which the appeal is taken.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, KEATING and BREITEL. Judge VAN VOORHIS dissents and votes to reverse and remit the case to the Workmen's Compensation Board in accordance with the dissenting opinion at the Appellate Division.