Opinion
November 16, 1943.
Appeal from Unemployment Insurance Appeal Board.
Claimant was the leader of an orchestra which furnished music nightly at the appellant's restaurant. There was no written contract between the parties. The restaurant hired the Paul Muni ensemble to play in its restaurant for $140 per week. No details were discussed or agreed upon. Muni held himself out as a contractor. He undertook to make social security deductions from the members of his orchestra. The proof shows that appellant made some deductions and its manager discussed the matter with a federal auditor. The auditor told him it was Muni's business to carry social security and unemployment insurance for the members of his ensemble. The appellant thereupon returned to Muni the amounts which it had deducted. Muni insisted that it was his obligation to look after these matters. The proof discloses that appellant exercised no control or supervision over Muni or those associated with him. It paid Muni a lump sum weekly and he in turn paid his own employees. The record shows that Muni considered himself an independent contractor and not an employee, because in filing his Federal income tax returns he treated the amount paid to the orchestra weekly as his income and took as a deduction, as expenses, the amount paid by him to the men in the orchestra. Muni admitted that his ensemble played outside the restaurant on numerous occasions. The proof clearly shows that Muni was an independent contractor and not an employee of appellant. ( Matter of Camgros, 290 N.Y. 838.) Decision reversed and claim dismissed, with costs to appellant against the Industrial Commissioner. All concur.