Opinion
July 2, 1953.
Appeal from Unemployment Insurance Appeal Board.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ. [See post, p. 845.]
The orchestra leader and the musicians involved operated under a written contract with appellant, known as a "Form B" contract. A contract identical in terms was involved in Matter of Hotels Statler Co. ( Corsi) ( 279 App. Div. 814, motion for leave to appeal denied 279 App. Div. 957, motion for leave to appeal denied 304 N.Y.. 987), and a finding that the hotel was the employer was upheld. The only difference between this case and the Statler case is that here a typewritten rider was attached to the contract, which read: "Russ Morgan acknowledges that he conducts `a name band' and is therefore responsible for Social Security taxes and Unemployment taxes on himself, members of orchestra and vocalists." Respondent urges that this rider is invalid under subdivision 8 of section 570 of the Unemployment Insurance Law (Labor Law, art. 18) which voids agreements by employees to pay contributions. If the band leader and the musicians are employees of the hotel, of course the rider is invalid. However, the case does not turn upon that point. If, in fact, they are employees of the hotel, any acknowledgment which might be construed to the contrary does not alter their status. The board has determined the relationship as a factual question, and the Statler case is authority for upholding the finding. Decision unanimously affirmed, with costs to the Industrial Commissioner.