In re for Claim Under Benefits Under Article 18 of the Labor Law

259 A.D. 949, 19 N.Y.S.2d 886, 1940 N.Y. App. Div. LEXIS 7396

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1940
• Status: Published

Opinion

Appeal by the alleged employer from a decision of the Unemployment Insurance Appeal Board, which held claimant to be an employee of appellant and entitled to unemployment insurance benefits. Appellant operated a restaurant. Prior to the commencement of business in 1937 it seemed the services of one Hughie Barrett, an orchestra leader, to assemble an eleven-piece orchestra to furnish dance music at appellant’s restaurant. Claimant became a member of this orchestra for this especial engagement. The orchestra was not a permanent organization. The oral arrangement with Barrett was confirmed by appellant in a letter written under date of April 30, 1937. This letter contained the following: “ It is understood and agreed that the rules, regulations and laws of the American Federation of Musicians and of Local No. 802 are controlling * * The rules and regulations of Local No. 802, in force and effect at the time, provided, under article X, subdivision A, of the by-laws: “ Engagements for employment as musicians shall be accepted by members only through such contractors. Musicians employed through such contractors shall be deemed employees of the principals and the contractors shall be deemed the agents of the principals and of the employed musicians in effecting such employment.” The Board, therefore, had before it substantial evidence to sustain its finding that claimant was an employee of appellant. Decision unanimously affirmed, with costs to the Industrial Commissioner. Present — Hill, P. J., Bliss, Heffeman, Schenck and Foster, JJ.