In re Claim for Benefits under Article 18 of the Labor Law, Made by Morton

261 A.D. 406, 26 N.Y.S.2d 920, 1941 N.Y. App. Div. LEXIS 7345

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1941
• Status: Published

Opinions

Schenck, J.

This matter has been before this court and before the Court of Appeals. (259 App. Div. 771; revd., 284 N. Y. 167; Id. 738.) This court held that the claimant herein was not an

employee and was not subject to the Unemployment Insurance Law of the State of New York. The Court of Appeals reversed this decision, however, and held that claimant was an employee and was subject to the provisions of said law. In denying a motion to amend its remittitur, the Court of Appeals stated that it had not passed upon the question of the jurisdiction of the Labor Department’s Referee over The Spirella Company, Inc., appellant herein. The order denying the said motion contained a proviso that the jurisdictional question “ may be argued in the court below.” The matter is before this court at present upon motion of the appellant.

I fail to see how this court can now pass upon any question involving the parties to this appeal as to the question of unemployment insurance. They are the same parties whose litigation concerning the same subject-matter (e. g., whether or not claimant is entitled to unemployment insurance benefits) has already been determined by the Court of Appeals. That court has ordered as follows:

“ Whereupon, The said Court of Appeals having heard this cause argued by Mr. W. Gerard Ryan, of counsel for the appellant; and by Mr. Clarence R. Runals, of counsel for the respondent order, and after due deliberation had thereon, did order and adjudge that the order of the Appellate Division of the Supreme Court appealed from herein be, and the same hereby is reversed and the decision of the Appeal Board reinstated with costs in this court and in the Appellate Division.”

Accordingly, it has been determined by the highest authority in this jurisdiction that the claimant herein is entitled to benefits as claimed. Having made this determination the fact that the court stated a certain question was not passed upon by it is immaterial. The basic controversy involved the question of the eligibility of claimant to receive unemployment insurance benefits. That point has been decided and the present proceeding is res adjudicata.

Presumably, the desire of appellant is to have the final order herein restricted to this claimant, so that it will not apply to other sales women in similar circumstances. The only proceeding before this court, however, involves this claimant and no other employee. Therefore, we can neither restrict nor enlarge the scope of the decision of the Court of Appeals.

Although in view of the foregoing I consider the matter purely academic, I believe that the Referee did have jurisdiction of appellant herein and that the result here would be the same even if the merits as urged by the appellant were properly before this court now. In any event, claimant herein is entitled to benefits under the Unemployment Insurance Law and the question of interpretation of that law having been determined as it was by the Court of Appeals, it necessarily follows that all sales women in situations similar to that of claimant would likewise be subject to the law, although this could, of course, not prevent appeals by appellant in individual cases.

Order may be entered accordingly.

Heffernan and Foster, JJ., concur; Hill, P. J., dissents in an opinion, in which Crapser, J., concurs.