In re J. H. H. Voss Co.

2 A.D.2d 626, 151 N.Y.S.2d 759, 1956 N.Y. App. Div. LEXIS 5477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1956
• Status: Published

Opinion

The appellant here has been assessed

for additional unemployment insurance contributions. During the period of the audit Mrs. Alice Voss Gertsmeyer was president of the corporation and she received moneys from the corporation in the years 1951, 1952 and 1953, which were designated as bonuses and paid to her at the end of each year. She holds all the stock of the appellant as trustee, and it is the contention of the appellant that whatever duties she performed were pursuant to the provisions of the trust agreement and not pursuant to any contract between the corporation as 'an employer and herself as an employee; that her position as president was merely to guide the stockholders so that the business in a sense would continue as a memorial for her late husband; that bonuses were paid to her for her advice and guidance to the corporation throughout the years in question. In a sense it is the appellant’s claim that Mrs. Gertsmeyer was an independent contractor. Whether a corporate officer who renders services to a corporation is an employee or an independent contractor is a question of fact. In this case the proof is that Mrs. Gertsmeyer performed the ordinary and usual services that would be performed while the president of a corporation. While she did not attend the place of business each day she was available at all times for advice as to the management and operation of the corporation. She signed the corporate checks and came to New York City several times a month for corporate business. It is difficult to see how we can say as a matter of law that she was not an (employee. Decision unanimously affirmed, with costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.