SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
April 24, 1969
IN THE MATTER OF THE CLAIM OF TENNYSON A. BERRY, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Cooke, J. Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Cooke, JJ., concur in memorandum by Cooke, J.
Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 30, 1967, disqualifying claimant from employment insurance benefits on the ground that he voluntarily left his employment without good cause. Claimant, for six years the president and secretary as well as the owner of half the stock of Kendall's Express, Inc., a hauler of commodity freight, sold said stock for approximately what he had paid for it to the vice president and holder of the remaining shares in November, 1966 and withdrew from the business. He now claims that his departure was due to a tension type of headache from which he was suffering, caused by a personality clash with his associate, for which he had been treated medically and because of which he had been advised to seek other employment. However, on his original application for benefits claimant stated that he left or lost his job because of the sale of stock and, following an interview at a local Department of Labor office, signed a statement giving reasons for quitting the corporation, in which no mention was made of headaches. The other stockholder testified that, as far as he was concerned, they got along "better than husband and wife", that he was aware that in the spring of 1967 claimant was having some problem but seemed to be all right thereafter and that claimant's own reason for getting out of the business, as stated to him and an attorney, was that he was sick and tired of the trucking business. Whether or not this was a voluntary leaving without good cause was a factual question for the board (Matter of Emple [ Catherwood ], 29 A.D.2d 711; Matter of Parnes [ Catherwood ], 27 A.D.2d 630), the determination of credibility being within the board's province (Matter of Golia [ Catherwood ], 27 A.D.2d 594; Matter of Ianitzky [ Catherwood ], 24 A.D.2d 1043), and we cannot say on this record that the decision of the board lacked rational basis or was without substantial support in the record (cf. Matter of Gaudio [ Catherwood ], 28 A.D.2d 1038; Matter of Amato [ Catherwood ], 26 A.D.2d 599; Matter of Liebermann [ Catherwood ], 25 A.D.2d 903; Matter of Fusfeld [ Catherwood ], 19 A.D.2d 678).
Decision affirmed, without costs.
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