In re United States Pencil Co.

Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board, dated March 15,1944, modifying the decision of an Unemployment Insurance Referee, dated October 27, 1943, which sustained the determination of the Industrial Commissioner that respondent was liable for additional contributions on the earnings of its employees, including those of persons performing services in their own homes. 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).