Opinion
November 28, 1949.
Appeal from Unemployment Insurance Appeal Board.
Claimant was drawing unemployment insurance benefits while out on strike. From January 3 through January 13, 1949, he was engaged in daily picket duty. For that reason, by his own admission, he was not looking for employment and could not and would not accept work if offered. The Industrial Commissioner made a determination that claimant was ineligible for benefits commencing January 3, 1949, which the Referee sustained. The board has modified this decision, holding that disqualification did not commence until January 13, 1949, the date when the commissioner first learned of claimant's unavailability. The evidence clearly sustains the initial finding that claimant had taken himself out of the labor market as of January 3, 1949. Hence he was not entitled to benefits from that date. The fact that this information did not come to the commissioner until later is immaterial. The holding in Matter of Salavarria ( Murphy) ( 266 App. Div. 933) is clearly distinguishable on the facts. Determination of the Unemployment Insurance Appeal Board, so far as appealed from, reversed, on the law, and the initial determination of the Industrial Commissioner modified so as to fix the period of ineligibility from January 3 to January 13, 1949, inclusive, and as so modified, reinstated. Heffernan, Brewster, Deyo and Santry, JJ., concur; Foster, P.J., dissents and votes to affirm the decision of the Unemployment Insurance Appeal Board.