dissent and vote to affirm in the
following memorandum by Herlihy, J. Herlihy, J. (dissenting). The board in its decision concluded as follows: "Upon review, the Board Panel finds on the basis of the credible evidence in the record that the decedent’s unauthorized carrying of a gun while on duty was a violation of a strictly enforced work rule and the fatal injury that resulted therefrom did not arise out of and in the course of the employment.” The board made no specific finding, but it is undisputed on this appeal that the claimant’s death was neither a suicide nor a homicide, but was accidental. The claim states that the "pistol accidently discharged”. Viewing the above-quoted language as holding that a violation of a work rule precludes an incident from arising in and out of the employment, we would agree with the majority that the board has committed legal error (see, e.g., Matter of Kilgore v Fragola, 14 AD2d 612). However, giving credence to the work rule (as we must because the board’s finding on credibility is binding), the record contains ample evidence to establish that the carrying of the pistol was a purely personal matter unrelated to the employment. The weapon was neither a tool of the workman nor an implement actually utilized in carrying out the employment. There is nothing to suggest that the weapon could have discharged as the result of a fall or other work-connected incident. Accordingly, the presumption of a compensable incident otherwise applicable by virtue of section 21 of the Workers’ Compensation Law has been negated (cf. Matter of McCormack v National City Bank of N. Y., 303 NY 5, 10-11). Finally, this case is so analogous to the case of Matter of Appleberry v Moskowitz (50 AD2d 1001) as to require affirmance. The decision appealed from should be affirmed.