Opinion
September 20, 1944.
Appeal from Unemployment Insurance Appeal Board.
The Board modified the Referee's decision by eliminating therefrom the earnings of those persons performing such services in their own homes prior to April 1, 1939, and holding that they were not employees. The status of those persons subsequent to that date is not in issue as respondent concedes that they were its employees thereafter and that it was liable for and paid contributions on their earnings after that date. The status of the alleged employees was a disputed issue of fact and there is substantial evidence to sustain the finding of the Unemployment Insurance Appeal Board. There is testimony that there was no supervision or control whatsoever over them. While concededly the Board might have found to the contrary, it did not do so. Determination confirmed, with costs to the respondent against the appellant. Hill, P.J., Bliss, Brewster and Foster, JJ., concur; Heffernan, J., dissents, on the authority of Andrews v. Commodore Knitting Mills, Inc. ( 257 App. Div. 515).