
    In the Matter of the Claim of Warren J. Gillman, Respondent, v. New York State Department of Law et al., Appellants. Workmen's Compensation Board, Respondent.
   This is an appeal by the employer and carrier from a decision of the Workmen’s Compensation Board awarding benefits to claimant from the date of his retirement as an Assistant Attorney-General, to February 4, 1961 and continuing the case. The facts of accident and disability are undisputed, the sole issue being whether or not the board was correct in making an award. The record establishes that the claimant had not practiced law prior to 1931 and that from 1931 until his retirement in 1956 at age 65, his sole employment had been in the office of the Attorney-General. It further appears that the sole reason for his retirement in 1956, instead of awaiting superannuation at age 70, was his disability. The appellants contend that on the authority of Matter of Singer v. New York State Workmen’s Compensation Bd. (11 A D 2d 886) the present award should be reversed. In that case this court held that when a professional person retired at the mandatory retirement age and thereafter practices his profession, the board may not make an award for reduced earnings unless there is proof of what the person would have earned without his disability. (Matter of O’Connell v. New York State Workmen’s Compensation Bd., 14 A D 2d 945, motion for leave to appeal denied 11 N Y 2d 641.) Here the claimant had not reached a mandatory retirement age and testified he would have continued at his employment if it were not for his disability. Thus, the board could properly use claimant’s average weekly wage with the Attorney-General and his actual earnings as an attorney (Workmen’s Compensation Law, § 15, subd. 3, par. v; subd. 5-a) in computing a reduced earnings award, without any necessity of proof as to what claimant’s earnings as an attorney would be without his disability. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present—Coon, J. P., Gibson, Herlihy, Reynolds and Taylor, JJ.  