In re the Claim of Ernest D.

from a decision of the Unemployment Insurance Appeal Board, filed June 12, 1979, which affirmed a decision ruling claimant ineligible to receive benefits because he was not totally unemployed and charging him with overpayment ruled to be recoverable upon the grounds that claimant willfully made false statements to obtain benefits. Claimant, an unemployed engineer, was a corporate officer and equal stockholder in his wife’s business. His only function was to sign most of the checks for payment of corporate obligations. His wife operated the business and made all business decisions. Neither received any salary. In his application for unemployment insurance benefits, he certified he was totally unemployed. We have consistently held that activities, such as those performed by claimant, were sufficient to deny him benefits (see Matter of De Vivo [Levine] 51 AD2d 619). However, we have also determined that under the circumstances presented, there is insufficient evidence to support a determination of willful false misrepresentation to obtain benefits (Matter of Czarniak [Ross], 60 AD2d 745; Matter of Todino [Ross], 59 AD2d 638). Decision modified, by striking so much thereof as finds a willful misrepresentation to obtain benefits ruled to be recoverable and imposes a forfeiture of effective days, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith, and, as so modified, affirmed, without costs. Greenblott, J. P., Sweeney, Kane, Main and Mikoll, JJ., concur.