
    (September 24, 1948.)
    In the Matter of the Claim of Charles W. Paul, Respondent, against National Savings Bank et al., Appellants. Workmen’s Compensation Board, Respondent.
   This is an appeal by the employer and its insurance carrier from an award of workmen’s compensation in favor of claimant. The employer was engaged in the banking business in the city of Albany and claimant was employed as a bookkeeper and accountant. On February 27, 1935, claimant kicked a water valve trap to stop running water and to prevent a flood in the men’s washroom of the employer’s office. As a result he suffered a right inguinal hernia. At that time the employer and carrier offered to pay the necessary expenses of an operation to reduce the hernia. Claimant refused to undergo such an operation. He lost no time from work as a result of the injury. On June 12, 1946, claimant was operated on for the correction of the hernia as a result of which he was disabled from that date until August 11, 1946. The board made an award of compensation covering that period. It is the contention of the appellants that the award should have been made against the Fund for Reopened Cases. The board found that the employer made an advance payment of compensation within the three-year period prior to the application for reopening. The evidence sustains the finding of the board. Award affirmed, with costs to the Workmen’s Compensation Board. Hill, P. J., Heffernan, Brewster and Russell, JJ., concur; Deyo, J., dissents, and votes to reverse the award as against the appellants and to remit the ease to the Workmen’s Compensation Board for an award against the Special Fund for Reopened Cases. Under the circumstances disclosed by the record, the C-27 filed June 3, 1946, constituted an application to reopen the ease and was considered as such by the board. Claimant had received no compensation during the three-year period prior to that date.  