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

261 A.D. 863, 25 N.Y.S.2d 1014, 1941 N.Y. App. Div. LEXIS 7807

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1941
• Status: Published

Opinion

Appeal by the Hotels Statler Co., Inc., from a decision of the Unemployment Insurance Appeal Board, affirming the decision of a referee which held that claimant was an employee of appellant. The latter conducts a hotel in the city of Buffalo, N. Y., and maintains therein a cocktail lounge where music is furnished for the entertainment of patrons. The manager of the hotel employed one Jack Valentine to procure and organize trios of musicians'for the purpose of playing music in the lounge. Claimant was a member of one of such trios. The Board has found that Valentine was the agent of appellant, and that the latter, through its manager, dictated the selection of personnel for each trio and the hours of employment. Also that appellant had the right to disband any trio upon two weeks’ notice to the leader, and that this in effect conferred upon it the right to discharge a musician whose services were unsatisfactory. There is substantial evidence to sustain these findings and the decision of the Board. Decision unanimously affirmed, with costs to the Industrial Commissioner. Present — Hill, P. J., Crapser, Bliss, Sehenek and Foster, JJ.