(dissenting). I do not believe that the Legislature ever intended that subdivision 8 of section 15 of the Workmen’s Compensation Law should apply to elected public officials. The whole purpose underlying the enactment of such legislation was to encourage employers to hire, or continue in employment, physically handicapped persons. The Legislature had in mind, I think, a conventional type of employment as envisaged in common speech. I doubt very much if the ordinary person would consider an elected public official as merely an employee.
We have held that an employer’s knowledge of a pre-existing disability is essential before subdivision 8 of section 15 of the *631statute may be applied (Matter of Zyla v. Juilliard & Co., 277 App. Div. 604). In other words, that an employee must be hired, or continued in employment as a physically handicapped person. It is obviously impossible in the case of an elected public official to make such a determination, especially in a county or district where one political party has an overwhelming advantage.
The fact that section 3 of the Workmen’s Compensation Law expressly makes Sheriffs and deputy sheriffs beneficiaries under the law in case of accidental injury or death does not, ipso facto, make subdivision 8 of section 15 applicable.
I dissent therefore and vote to reverse the award and remit the claim to the Workmen’s Compensation Board.
Bergan, Halpern and Zeller, JJ., concur with Coon, J.; Foster, P. J., dissents, in a memorandum.
Award affirmed, with costs to the employer against the appellant.