In re the Claim of Perdziak

259 A.D. 950, 19 N.Y.S.2d 1000, 1940 N.Y. App. Div. LEXIS 7403

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1940
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, dated October 13, 1939, noticed October 20, 1939, which affirmed a decision of the Unemployment Insurance Referee, dated June 26, 1939, and noticed June 27, 1939, holding that the claimant was an employee of the appellant within the meaning of the Unemployment Insurance Law, and awarding him benefits under that law based upon his earnings with the appellant. Appellant is engaged in the business of baking and selling cookies, and claimant was a distributor of these cookies. The appellant had sold him a truck to be used in distributing the cookies and was to deduct the purchase price from his weekly commissions. Claimant was assigned an established route by the appellant, although he might sell wherever he pleased in addition thereto. He was required to start out at a certain time on his route and to report back every evening. The manager frequently went around the route with him, giving him instructions. He could not sell competitive articles, and appellant’s name was printed on the truck. The sales slips delivered to customers with the purchases were made out in the name of appellant, and claimant was designated thereon as a salesman. ^ He was required to make a daily report and to turn in the moneys received daily. He might return merchandise and receive credit therefor, his route could be taken away from him, and he could foe discharged by appellant at will. The sole question on this appeal is whether claimant was an employee or independent contractor. He was held below to be an employee. Decision affirmed, with costs to the Unemployment Insurance Appeal Board. Hill, P. J., Bliss, Hefternan and Foster, JJ., concur; Sehenek, J., dissents on the ground that the claimant was an independent contractor.