Opinion
May 22, 1967
Appeal from a decision of the Unemployment Insurance Appeal Board holding the employee eligible for unemployment insurance benefits. The employer contends that the employee was an agricultural laborer and is not, therefore, subject to the coverage provisions of the Labor Law (§ 511, subd. 6). The term "agricultural laborer" is defined by statute as including, among other forms of service there enumerated, that performed "on a farm, in the employ of any person", in connection with the raising and caring for poultry (par. [a], cl. [1]); in handling, packing, processing, storing or delivering to market any agricultural commodity, "but only if such service is performed as an incident to farming operations" (cl. [4]). The record clearly shows that the employer, in the operations at Jericho with which the employee was connected, was in the business of preparing chickens for sale to general customers, both wholesale and retail, and that some 50% of the volume sold at the outlet with which the employee was connected, was purchased from other producers for the purpose of eventual resale. The record further clearly establishes that, within the ordinary acceptance of the statutory terms, the service employed in the business of purchase and resale, relatively huge in volume, was not "in connection with" any agricultural operation contemplated by clause (1) and that the service cannot reasonably be said to have been "incident to farming operations", within the meaning of clause (4). (Cf. Matter of Perkins [ Catherwood], 14 A.D.2d 185.) We find in the record substantial evidence which supports the board's findings. Decision affirmed, with costs to claimant-respondent. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.