Opinion
January 17, 1962
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal from decision of the Unemployment Insurance Appeal Board which found the claimant ineligible for benefits for the period May 11, 1959 to November 15, 1959 because of late filing. The claimant's husband, who was a lawyer, upon the death of his father took over the leather goods business and operated it as the executor of the estate. There was no change made in the name of the business and the bank account was in the claimant's husband's individual name. At no time during the period here involved was any transfer of the business made from the estate to any other entity. In October, 1958, the claimant was employed as a bookkeeper at a salary of $50 per week. In 1959, a payroll examiner of the respondent came to the place of business and attempted to make a payroll audit as the business was delinquent in filing returns. The record discloses that during the visit of the examiner some conversation took place as to whether the business was being operated by the estate or by a partnership and it is alleged that the examiner said that if it was being operated by the partnership, the petitioner-claimant would be entitled to benefits but inasmuch as it was being operated by the estate, she was not entitled to benefits. The examiner stated that he may have said "that the spouse of an individual proprietor was not entitled to benefits". The claimant claims that because of the statements allegedly made by the payroll examiner she was led to believe that she was not entitled to benefits and that belatedly she found such information was erroneous and because of the misunderstanding she should be allowed to make a late filing. Assuming that it was a misunderstanding, from the record we are unable to say as a matter of law that the department was chargeable with the misunderstanding. At the time of the alleged opinion by the payroll examiner, the claimant and her husband were or should have been in a better position to know the true concept of the business entity than a visiting payroll auditor. We have involved here a question of credibility and a factual situation and the determination by the board is final. Determination unanimously affirmed, without costs.