Opinion
July 27, 1960
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal by claimant from a decision of the Unemployment Insurance Appeal Board. This appeal by claimant from a decision of the Unemployment Insurance Appeal Board involves the employment of the president of the same concrete construction corporation considered in Matter of D'Angelo ( Catherwood) ( 11 A.D.2d 825). There the ruling of the board that two corporate officers were not "totally unemployed" within subdivision 1 of section 591 of the Unemployment Insurance Law (Labor Law, art. 18) was affirmed on the ground that discontinuance of work by corporate officers who retain control over distribution of work and salary in a seasonal occupation was not total unemployment. (Cf. Matter of Korth, 266 App. Div. 934, motion for leave to appeal denied 292 N.Y. 724). This case is governed by the same principle but evidence that claimant was not totally unemployed is here somewhat stronger. The record would sustain a finding that claimant was paid a small amount by the corporation for the use of equipment owned by him; had his telephone bill paid by the corporation; and during the time claimed for unemployment benefits, made bids on a job for his corporation; at other times he solicited business for the corporation. Decision unanimously affirmed, without costs.