SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
April 24, 1969
IN THE MATTER OF THE CLAIM OF EDWARD G. BARTLETT, APPELLANT. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER, RESPONDENT
Reynolds, J. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum by Reynolds, J.
Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board holding him ineligible to receive benefits effective August 22, 1966 on the ground that he was not totally unemployed (Labor Law, § 522). Claimant, an employee of the National Gypsum Company, became unemployed due to a strike and after the expiration of the statutory suspension period (Labor Law, § 592, subd. 1) filed for benefits. The board has ruled him ineligible in that he was not totally unemployed within the meaning of section 522 of the Labor Law because of his ownership and operation of a farm on which he resided. The determination of total unemployment is factual and thus within the sole province of the board if supported by substantial evidence (e.g., Matter of Carasso [ Catherwood ], 23 A.D.2d 935). On the instant record the board could properly find that in view of claimant's farm activities he was self-employed and therefore not totally unemployed (Matter of Jordal [ Catherwood ], 28 A.D.2d 745; Matter of Soroka [ Catherwood ], 24 A.D.2d 920).
Decision affirmed, without costs.
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