Opinion
December 15, 1967
Appeal from a decision of the Unemployment Insurance Appeal Board finding the claimant to be an employee within the meaning of the Unemployment Insurance Law (Labor Law, art. 18) and entitled to benefits. The appellant is a manufacturer of surgical instruments with its principal office in Chicago. Although it has no place of business in New York, it had entered into an arrangement with one Walton P. Smith whereby Smith became the company's agent in the New York area on a commission basis. Claimant's application to the appellant for a position as a salesman was approved and he was then referred to Smith for training. Orders obtained by the claimant were initially approved by Smith, but when it satisfactorily appeared that he was capable of making out the orders, they were sent directly to the company. Claimant's arrangement with the company provided for a drawing account of $125 per week against commissions from which he paid his own expenses. He was paid for nine weeks on this basis. The territory assigned to him was a part of that formerly held by Smith and the arrangement further provided for Smith to receive an over-ride on claimant's commissions when they exceeded his weekly draw. Because his advances exceeded his commission by $684.06, appellant terminated its arrangement with the claimant but no attempt was ever made to gain repayment by the company. The board properly rejected appellant's contention that claimant was an independent contractor and its finding that he was an employee of the appellant is based upon substantial evidence. The case presents questions of fact solely within the province of the board whose determination is supported by substantial evidence and must be affirmed. (See Matter of Electrolux Corp. [ Miller], 288 N.Y. 440; Matter of Kelly [ Catherwood], 28 A.D.2d 786; Matter of Lieberman [ Catherwood], 28 A.D.2d 106.) Decision affirmed, with costs to respondent filing brief. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.