(dissenting). The statute setting up disability benefits is laid on a very broad base. (Disability Benefits Law, § 203.) It does not provide merely that benefits are payable if the disability occurs at precisely the time a claimant is doing work for wages; rather the right flows from the relationship.
Benefits, so the statute runs, shall be payable to “ employees ” of a covered employer. It is not required they be drawing pay for hire when disability occurs; but rather that they be “ in employment ”, which is a more inclusive term and which could reasonably contemplate temporary leaves of absence where it was understood the employment continues; or during unpaid vacations or other suspensions of the work and pay, but not the relationship.
A common example of continuance of the relationship would be at weekends in an hourly wage job. If a man became ill on Sunday night it would not be held that he was out of employment because the last work he.did for which he was paid was, for example, the Thursday before.
And this is not because of the provision of section 203 requiring that he continue to be eligible for benefits during a period of four weeks “ after such employment terminates ”. No one would think that employment had terminated; coverage would exist, rather, because the statute provides he would “ continue to be eligible ’ ’ during the employment. How long the employment relationship may continue while an employee is not receiving pay is a matter of degree and intention between employer and employee; and it would be expected to differ.
To say that there are other provisions for disability during periods of unemployment concomitant with the right to unemployment insurance benefits is to add nothing to this problem. The question here is whether it could be found as a fact on this record that the claimant’s employment continued through her pregnancy leave.
The statute does not forbid its continuance; no statutory definition interdicts an intention by the parties to effect such continuance; and the parties themselves certainly could be found on a proper record to have intended a continuance.
*368Decisions of the court in Matter of Russomanno v. Leon Decorating Co. (306 N. Y. 521) and Matter of Kriete v. Todd Shipyards (285 App. Div. 36, affd. 308 N. Y. 1027), both dealt with the problem of acquiring the qualifying number of weeks of employment to achieve eligibility and hence are not directly controlling here; but it is interesting to note that in Kriete the question whether the employment relationship continued so as to fill out the qualifying period in the absence of an actual day by day work for day by day pay was held to be a question of fact. To the extent that it is also reasonable to think after an employee has qualified for benefits the continuance of qualifying employment is a question of fact, the Kriete case is of some aid in determining the case before us.
The provisions of subdivision 3 of section 205 exclude from benefits a period of disability connected with pregnancy. It is not contended here that the disability claimed had any connection with pregnancy; it had no such connection. But even a disability caused by pregnancy is covered if it arises “ after return to employment ’ ’ for two consecutive weeks beyond the termination of pregnancy (§ 205, subd. 3).
The words “ after return to employment ” are italicized in appellant’s brief and it may be that where a claim for benefits is based on the effects of pregnancy, a woman must actually be physically working for two consecutive weeks after the end of her pregnancy before she establishes that special kind of eligibility. It is not necessary to reach that question because that is not this case.
The question here is whether for a disability not connected with pregnancy the employment relationship may be found as a question of fact to have continued notwithstanding no work was done during a limited period and no wages were paid.
The record sufficiently supports the finding that the employment relationship continued during the pregnancy leave. At the very outset of the proceeding the referee asked appellant’s counsel whether the pregnancy leave constituted 1 ‘ a severance of employment ’ ’. It was not stated by appellant that it did; rather that it “ constitutes cessation of active work ”, which is quite a different thing and which in this context necessarily implies a continuance of the relationship.
During the pregnancy period certain benefits arising from the employment relationship were due claimant and were paid by the appellant carrier. An “ active ” and “ inactive ” file, and a “ dead ” file for employees who “ leave for good ” were maintained by employer, and claimant’s records while on her pregnancy leave were in the ‘ ‘ inactive ’ ’ file. Some of claim*369ant’s benefits arising from the employment relationship, including her “ package insurance coverage ” were continued many months beyond the period of disability here in issue.
She had, by agreement between the employer and her union, certain “ rights ” of “ continuity of service ” which the employer recognized and acted upon. Upon this record which has some substantial evidence of continuity of the employment relationship, it ought not be held that the relationship could not, as a matter of law, continue. It seems to be argued that because claimant was not making contributions based on payroll payments at the very moment of disability she finds herself shut out for nonparticipation in a statutory scheme requiring mutuality of contributions. She had made her statutory contributions regularly as far as this record shows from the time employment began until her leave of absence started. No default is established which would take away her right to benefits.
If, as it has been argued, the case of the shape-up of longshoremen considered in Kriete is a special one requiring special treatment, the case of the woman in industry, disabled for a cause not related to pregnancy, is no less a special case.
The award should be affirmed.
Foster, P. J., Coon and Gibson, JJ., concur with Halpern, J.; Bergan, J., dissents, in a memorandum.
Award reversed and the claim dismissed, with costs to the appellants against the Workmen’s Compensation Board.