In re the Claim of D'Angelo

Appeal by the claimants from a decision of the Unemployment Insurance Appeal Board denying their claims for benefits. The claimants worked as laborers for a construction company for $100 per week. They each owned one of the three shares of the company’s stock and they held the positions respectively of vice-president and secretary-treasurer of the corporation. The third share was held by the president who also owned and leased to the corporation most of the equipment which was used. The claimants received no salary for their corporate positions nor did they receive any money from the corporation in addition to the weekly salary they were paid for the work which they performed. They were the beneficiaries however of an increase in the value of the corporation’s equipment and inventory. It appears that during the time when they were not actually engaged in construction work which was from November 11, 1957 to March 16, 1958 they did nothing for the corporation but they did retain their corporate positions. The Industrial Commissioner held the claimants ineligible for benefits in view of their corporate positions. The Referee reversed finding the claimants totally unemployed in that they held titles only as officers and performed no function with relation to the corporation when not engaged in construction work. The board reinstated the Industrial Commissioner’s determination holding that since the claimants continued to hold their corporate offices during the period when they were not actually working they were not totally unemployed. It pointed' out that “ they had the power to arbitrarily fix salaries and could increase their normal drawings during a busy season to compensate for lack of earnings during a slow period.” In a situation closely analogous to the present ease this court upheld a determination by the board of ineligibility for benefits (Matter of Korth [Murphy], 266 App. Div. 934). Under such circumstances as are presented here the finding that the claimants were not totally unemployed is supported [826] by substantial evidence and should not be disturbed. Decision unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.