The opinion
Munder, J.
(dissenting). I dissent because I share the view expressed by the Special Term, by the State Comptroller, and by the Governor when in 1966 he vetoed an amendment to section 92 of the General Municipal Law which would have permitted municipalities to provide cash payments for unused sick leave, that any attempt by a county, city, town, village or school district to pay an employee in cash for unused sick leave violates section 1 of article VIII of the New York State Constitution. The majority cites a number of cases in which New York courts have upheld the validity of payments for pensions and other allowances for public employees, but none involved unused sick pay, which is a relatively recent development of the collective bargaining process. To me, sick pay is fundamentally different from the items previously exposed to judicial scrutiny.
Sick pay is a form of insurance protection against an employee’s loss of wages due to illness. If the contingency insured against, namely, illness, does not occur, I see no reason why the ‘ ‘ insured ’ ’ employee should recover the benefits. As the Governor noted in 1966, 11 The occurrence of illness is the condition precedent which activates the employer’s obligation to pay for absences caused by such illness. "Where there is no illness, the condition never occurs and the employer’s obligation never comes into being ” (N. Y. Legis. Annual, 1966, p. 396).
*358 The provision in the employment contract before ns seeks to circumvent this, i.e., it seeks to have the employer school district pay cash to the estate of one of its employees even though the district’s obligation to do so never came into being. Such a payment “ ‘ would be a gratuity forbidden by the fundamental law of the State ’ ” (Matter of Carr v. Roesch, 231 App. Div. 19, 25 ). For this reason, the arbitrator’s award seeking to implement this provision was violative of the public policy of the State.
In the exercise of its general equity powers, the Special Term acted properly in refusing to confirm the award (8 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 7510.07). The order should be affirmed.
Martuscbllo, Latham and Brennan, JJ., concur with Hopkins, Acting P. J.; Hunker,, J., dissents in opinion.
Judgment reversed, on the law,, without costs, application granted and award confirmed. The findings of fact below are affirmed.