In re Brown

260 A.D. 972, 23 N.Y.S.2d 330, 1940 N.Y. App. Div. LEXIS 5649

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1940
• Status: Published

Opinion

Appeal pursuant to the provisions of section 535 of the Labor Law from the decision of the Unemployment Insurance Appeal Board which held that the claimant was an employee of Hotels Statler Company, Inc., employer. Claimant was a vocalist and was a member of the Dick Stabile Orchestra. This orchestra was engaged by employer-appellant for playing during customary hours. The issue presented here is whether Dick Stabile was an independent contractor and employer of claimant, or whether Dick Stabile and each and every individual member of his orchestra were employees of appellant. The Unemployment Insurance Referee and the Appeal Board held that claimant was an employee of the appellant. Clearly, she was not such an employee but was an employee of Dick Stabile, an independent contractor, for a certain period of time. Appellant did not hire the individual members of the orchestra, nor did it enter into a contract with Stabile, as agent. Through a booking agency appellant contracted for the services of an orchestra, the members of which were the employees of Dick Stabile. This case is readily distinguishable from the cases of Matter of Rogavin (259 App. Div. 774) and Matter of Ajello (Id. 949). The decision of the Unemployment Insurance Appeal Board should be reversed. Decision of the Unemployment Insurance Appeal Board reversed. Present — Bill, P. J., Crapser, Heflernan, Schenek and Poster, JJ.