Gillespie, Application of

         George Schein, New York City, for petitioner.

         Jacob K. Javits, Atty. Gen. (Henry S. Manley, Sol. Gen., Albany, George H. Rothlauf, Asst. Atty. Gen., of counsel), for respondent.

         Before FOSTER, P. J., and BERGAN, COON, IMRIE and ZELLER, JJ.

         PER CURIAM.

         Proceeding under Article 78 of the Civil Practice Act to review a determination by the Comptroller disapproving and denying petitioner's application for accidental disability retirement under the provisions of Section 79 of the Civil Service Law.

         The petitioner was employed as a traffic officer by the Port of New York Authority. On June 17, 1949, he underwent a subtotal gastrectomy for relief of a chronic, penetrating duodenal ulcer from which he was suffering. He was discharged from the hospital on June 28, 1949 and thereafter returned to his work.

         On October 7, 1949, while petitioner was engaged in the work to which he had been assigned of sorting stanchions to be used at different corners and streets for directing traffic, it became necessary to lift a stanchion that had become entangled and, in doing so, he felt a sharp pain in his abdomen and was removed to the Medical Department of the Port of New York Authority and examined by a doctor. Petitioner returned to work the following day and continued to perform his duties as traffic officer until February 6, 1950. Although petitioner had been examined by the Medical Department doctor on five different occasions between October 7 and November 29, 1949, no defect or hernia was found. However, on February 3, 1950, the Department doctor found some bulging and the condition was diagnosed as post operative ventral hernia. On February 6, 1950, his own physician advised operative repair for an incisional hernia. The operation was performed and he thereafter returned to duty on May 23, 1950. A recurrence of the incisional hernia was found by petitioner's physician on July 28, 1950, but he continued to work until October 2, 1952 when he retired.

         Petitioner's application for disability retirement was based on the alleged accident of October 7, 1949 and was disapproved by the Comptroller on the basis of a finding that the accident was not the cause of the disability. There was conflicting expert medical opinion before the Comptroller. Although the physician who performed the operation did not testify at the hearing, the Comptroller had before him the doctor's sworn statement showing a definite diagnosis of incisional hernia on November 4, 1949. At the time of the hearings, the Medical Department doctor was deceased, but a transcript of his records was received which clearly shows no evidence of hernia until almost four months after the accident occurred. Petitioner's family physician testified that the injury would have occurred immediately after the lifting and not after a lapse of two or three months. The opinion of the impartial medical examiner was that the hernia in February, 1950, was not related to the accident of October 7, 1949.

         Upon the whole record, there was substantial evidence to support the Comptroller's determination that the disability was not the result of the accident. The Comptroller's determination of question of fact upon the basis of substantial evidence is conclusive. McCadden v. Moore, 276 A.D. 490, 95 N.Y.S.2d 740, affirmed 301 N.Y. 760, 95 N.E.2d 819.

         Determination unanimously confirmed, without costs.