SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
November 26, 1968
IN THE MATTER OF THE CLAIM OF ESTELLE DAVIS, APPELLANT. CITY OF NEW YORK ET AL., RESPONDENTS. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 22, 1966, disqualifying claimant from unemployment insurance benefits.
Gabrielli, J. Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.
On January 4, 1961 claimant was appointed a Corporation Inspector by the Acting President of the Borough of Manhattan at an annual salary of $1,800, her duties being to inspect street repairs made by the respondent utility following its opening of streets to conduct work on and make repairs to its lines. By reason of the provisions of section 83 of the New York City Charter, providing for payment by the utility of inspection of street restoration, claimant's remuneration for services was based on orders for payment therefor by the office of the Borough President, presented to the utility and paid by it under the authority of the charter provision. In addition to her appointment by the Borough President, the record clearly shows that (1) claimant received her assignments from and made her reports to his office, (2) her salary was fixed by the city, and (3) her services were subsequently terminated by the city. There existed none of the usual and necessary indicia of employer-employee relationship between the utility and appellant. The determination of the board was based on substantial evidence and any contrary determination could not be sustained.
Decision affirmed, without costs.
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