(dissenting). Claimant sustained serious injuries while performing his duties as superintendent of highways (an elective office) of the town of Veteran.
The carrier herein had issued a policy of insurance to the town. The policy itself is not printed in the record, but the brief of each party states that it was a workmen’s compensation policy. Attached thereto was a rider which is set forth in full in the record, which rider by its terms is described as a “ policy amendment endorsement.” It recites in substance that in consideration of the terms under which the policy is issued, “ It is understood and agreed that * Stanley R. Dann, Highway Superintendent,’ is an employee of the employer,” and that the policy shall apply to said Stanley R. Dann, highway superintendent, “ in the same manner and under the same conditions as the said policy applies to other employees of the employer * * *. Anything herein contained shall be held not to waive, alter, vary or extend any of the terms or provisions of this policy, except as herein stated.”
*466The Board denied compensation upon the ground that claimant was not an employee within the meaning of the Workmen’s Compensation Law, and that the attempt to cover claimant by a policy amendment indorsement, although made in good faith, was an ultra vires act without binding force.
The appellant concedes that claimant is not within the provisions of the Workmen’s Compensation Law as an employee (Youngman v. Town of Oneonta, 204 App. Div. 96), unless brought within the definition of “ employee ” by contract.
Under section 19 of article 1 of the Constitution of the State, the Workmen’s Compensation Law is valid only in so far as it is based upon the relation of employer and employee. (See Kackel v. Serviss, 180 App. Div. 54.)
The whole theory of the Workmen’s Compensation Law is based upon this relationship. (See § 3, subd. 1, opening paragraph, and group 19; § 10; § 11; § 50, opening paragraph, and § 50, subd. 4, lía.)
Subdivision 6 of section 54 provides for workmen’s compensation insurance covering the executive officers of a corporation, but the superintendent of highways is not an executive officer nor a member of the town board. (Town Law, § 60, subd. 2.) He is an independent public officer and not an agent of the town. (People ex rel. Van Keuren v. Town Auditor, 74 N. Y. 310; People ex rel. Morey v. Town Board, 175 id. 397. Cf. Farnsworth v. Boro Oil & Gas Co., 216 id. 40, and cases cited therein; Small v. Gibbs Press, Inc., 248 id. 513.)
Group 17 of subdivision 1 of section 3 brings within the act a limited class of employees of a municipal corporation, such employees being only those engaged in hazardous employments specifically listed in prior provisions of the statute.
Since the liability of the employer is imposed only for disabilities suffered by an employee, the town is not liable to the claimant under the act, Furthermore, any attempt by the town or its officers to accept such liability would be ultra vires. (Smith v. City of Newburgh, 77 N. Y. 130.) Every one is chargeable with knowledge of the limitations which the law imposes on the powers of the town and its officials and in this case no principle of equity or estoppel arises in favor of the claimant as against the town.
In behalf of the appellant it is claimed that in any event the insurance carrier is liable by virtue of its contract with the town whereby it agreed that its policy should cover the town superintendent. The policy, however, is a policy of workmen’s compensation, and under the Workmen’s Compensation Law the insurance carrier is obligated as surety for the liability of the employer and *467not otherwise. If the town is not liable then there is no liability as against the surety. No statute has been pointed out authorizing the town to provide any other form of accident insurance to cover claimant, and even if it be assumed that the town had authority to provide such accident insurance, the enforcement of such a policy against the insurer would not be within the jurisdiction of the State Industrial Board; its jurisdiction is confined to matters arising out of the status of employer and employee, and is limited by the provisions of the Workmen’s Compensation Law; it is not the forum for the adjudication or enforcement of claims arising outside the limits of that statute; any such relief must be sought in the courts.
The decision should be affirmed.
Decision reversed, with costs against the State Industrial Board, and matter remitted, with instructions to make an award.