In re the Claim of Schmahman

Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board which affirmed a decision of a referee which, in turn, had overruled an initial determination of the Industrial Commissioner holding claimant ineligible to receive 626 benefits for an indefinite period commencing September 19, 1949, on the ground that he was unavailable for employment. Claimant had been engaged in the restaurant business for many years as an employee and owner. He was last employed prior to 1938; after that he was in business for himself until July, 1948. Approximately a year later he filed a claim for benefits on July 18, 1949. Although the evidence rather strongly indicates that he was seeking to purchase another business rather than employment, nevertheless there is some evidence that he was looking for employment. He attached to his quest a condition that he would only work five hours a day, from 10:00 a.m. to 3:00 p.m., or from 12:00 to 5:00 p.m. The board, in addition to adopting the findings of fact and conclusions of law made by the referee, made the additional finding that there were establishments located in the financial and business districts of New York city which might have utilized claimant’s services during the hours from 10:00 a.m. to 3:00 p.m. We find no substantial evidence to sustain this finding, or to sustain the conclusion that claimant was available for employment within the meaning of the statute. Decision of the Unemployment Insurance Appeal Board reversed, on the law, and the initial determination of the Industrial Commissioner reinstated, without costs. Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ., concur.