Opinion
January 9, 1952.
Appeal from Unemployment Insurance Appeal Board.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ. [See post, p. 957.]
The leaders and musicians involved operated under written contracts which designated them as employees. There is some evidence of rather trifling acts of control on the part of the management of the hotels where the orchestras played. Neither the referee nor the board apparently made any attempt realistically to appraise the relationship in the light of common-law principles, as was done in the case of Bartels v. Birmingham ( 332 U.S. 126). However, under the decisions of this State we think the decision of the board must be affirmed as being within the realm of fact ( Matter of Camgros [ Miller], 264 App. Div. 973, affd. in part 290 N.Y. 838; Matter of Roseland Amusement Co. [ Corsi], 269 App. Div. 713, affd. 295 N.Y. 913). Decision unanimously affirmed, with costs to the Industrial Commissioner.