Opinion
December 19, 1957
Appeal by the Industrial Commissioner from that portion of a decision of the Unemployment Insurance Appeal Board which affirmed the decision of an unemployment insurance referee and held that claimant was totally unemployed for a period commencing April 13, 1955 and was not overpaid in benefits in the amount specified in the initial determination overruled by the referee. We find no substantial evidence supportive of the decision appealed from. Accepting claimant's testimony in the light most favorable to him, it appears that he worked three or four hours on each of three or four days per week in a bar and grill owned by him. Such self-employment during the period for which claimant sought and received benefits constitutes employment within the meaning of the statute (Labor Law, § 522; Matter of Emery [ Corsi], 281 App. Div. 426) and the finding of total unemployment was, therefore, unwarranted. (Labor Law, § 591, subd. 1; Matter of Bunzl [ Lubin], 1 A.D.2d 46.) The clear requirement of the section last cited renders irrelevant claimant's contention that this work in his own business did not interfere with his seeking or accepting full-time employment for wages. Decision reversed and matter remitted for further proceedings, without costs. Foster, P.J., Bergan, Coon, Halpern and Gibson, JJ., concur.