Opinion
February 20, 1962
Claimant appeals from a decision of the Unemployment Insurance Appeal Board holding that claimant willfully made a false statement to obtain benefits, and imposing a forfeiture of 24 effective days in reduction of future benefits. The undisputed facts are unusual. Claimant filed for benefits effective October 24, 1960. The week here involved ended on Sunday, November 6, 1960. On Saturday morning, November 5, claimant received notification that he had been accepted for a full-time job and was to report for work on Monday, November 7. For some time past claimant had worked occasionally on a part-time job as a shoe salesman in a shoe store. He did not expect to work in the part-time job on Saturday, November 5. Realizing that he would be unable to personally appear at the unemployment office on Tuesday, his regular reporting day, he filled out on Saturday morning a mail report. Therein he inserted the letter "N" meaning that he did not work, for each of the days for the week ending November 6. At the time he filled out this form this information was perfectly true. He sealed the form and gave it to his wife with instructions to mail it sometime before November 10. He never saw it again. After all this had taken place the shoe store called him, unexpectedly, on the same day, and asked him to report for work at noon on that day, November 5. He did so and worked until 9 o'clock that night, earning $17.86 wages and commissions. He says that the preparation for his new full-time job as office manager and accountant occupied all of his attention and he forgot to change the form which he had previously truthfully made out. When he received his unemployment insurance check it was for $37.50. His regular full rate was $50. He assumed that the unemployment office had learned of his part-time employment and had deducted one day, and believing that, he cashed the check. Actually the $12.50 deduction related to the previous week, but claimant insists he did not know that. Upon this evidence the Referee found: "I have carefully interrogated the claimant. He is a credible witness. I find that he did not intend to misrepresent but made an honest mistake when he certified incorrectly for the statutory week ending November 6.", and he then determined: "Decision: The initial determination of lack of total unemployment is sustained. The initial determination of wilful false statement is overruled. Claimant was overpaid. The overpayment is recoverable." The Appeal Board reversed the Referee, saying: "We reject as incredible that he forgot that he had worked". There is not even a suggestion in the record that claimant ever claimed that he forgot that he had worked. His only claim was that he forgot to change the form which he had previously made out and given to his wife to mail. The record indicates that claimant is a conscientious worker who was seeking employment rather than unemployment insurance. While credibility of witnesses is ordinarily within the exclusive province of the board, we find no substantial evidence to support the board's determination that this misstatement was willful. This seems especially true when the board based its decision, at least in part, in finding "incredible" an assertion which claimant never made. Decision of the board reversed and the decision of the Referee reinstated, with costs. Bergan, P.J., Coon, Reynolds and Taylor, JJ., concur; Herlihy, J., dissents: I dissent and vote to affirm. (See Matter of Bernstein [ Corsi], 278 App. Div. 625, affd. 303 N.Y. 755; Matter of Vicks [ Catherwood], 12 A.D.2d 120.)