Opinion
May 16, 1960
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal by the alleged employer from a decision of the Unemployment Insurance Appeal Board holding that appellant is subject to contributions pursuant to subdivision 2 of section 560 Lab. of the Labor Law because it employs two or more persons. The sole issue is whether one Arthur Leonard was an employee or an independent contractor. Appellant corporation owns an apartment building containing seven apartments. In 1943 it entered into a written contract with Leonard and his wife which, among other things, required them "to perform in a satisfactory manner all the duties of a superintendent at those premises; to keep the interior and exterior neat and orderly, and to render such services to the tenants as shall be satisfactory." The contract also required the Leonards to be "available at reasonable times and to render generally satisfactory services." The contract was terminable by either party upon 30 days' notice. The Leonards were furnished an apartment at reduced rental as compensation. The question of the wife's employment is not involved here. It appears that Leonard keeps the place clean, sometimes employs others, whom he pays, to assist. He purchases supplies and cleaning materials and is reimbursed therefor each month by appellant. He was not given any detailed instructions as to the manner in which he was to perform the work or the time to be spent thereon. It seems clear that Leonard was engaged primarily to perform janitorial services "in a satisfactory manner" and "to render generally satisfactory services." The only logical inference is that the services were to be satisfactory to appellant, and hence the necessary implication that the appellant had the right of control, whether exercised or not. Only a question of fact was presented, and the evidence, with proper inferences to be drawn therefrom, is adequate to support the finding of the board that Leonard was an employee. ( Matter of Citizens Nat. Bank of Hammond [ Lubin], 1 A.D.2d 865; Matter of Salpeter, 266 App. Div. 1051.) Decision unanimously affirmed, with costs to respondent.