In re the Claim of Patt

Memorandum by the court. Appeal from a nonunanimous decision of the Unemployment Insurance Appeal Board which reversed a determination of a Referee and held appellant, an alleged employer, liable for unemployment insurance contributions on wages paid claimant, a member of an orchestra which on two occasions in August, 1957 gave public performances in parks of the City of New York under the sponsorship of its Park Department, the cost of which appellant assumed, paid and charged to advertising expense. The services of claimant were rendered pursuant to the provisions of the so-called musician’s union Form B contract which denominated appellant as the employer and, in part, provided: “ The employer shall at all times have complete control of the services which the employees will render under the specifications of this contract.” The evidence relied on by appellant in support of the contention that the clause was intended by the parties to be a convenient formal proviso which overlooked the real fact of dominion in order to comply with a union requirement merely demonstrated that the employer failed affirmatively to exercise the control expressly reserved to it under the unambiguous terms of the contract. Upon proof to like effect we have held in three recent cases that the board within its fact-finding power could properly find the pertinent contract provision decisive. (Matter of American Legion [Catherwood], 10 A D 2d 400; Matter of Hotel Wagner Corp. [Catherwood], 11 A D 2d 568; Matter of Geuvara [Hotel Syracuse] [Catherwood], 17 A D 2d 876.) The decision should be affirmed, with one bill of costs to be apportioned between respondents.