| N.Y. App. Div. | May 7, 1941
Appeal from a decision which held claimant to be an employee of appellants, and entitled to be credited with his earnings in such employment as a basis for unemployment insurance benefits. Appellants operate two theatres, one in Freeport and the other in Huntington, N. Y. From June 15, 1938, to November 23, 1938, claimant was the leader of a seven-piece orchestra which played at such theatres in conjunction with vaudeville acts. This orchestra was engaged through the medium of a booking agent. Claimant and appellants entered into an oral contract by which claimant agreed to furnish music for three days a week at the Freeport theatre for a lump sum of $100 a week, and for the remainder of the week at the Huntington theatre for a lump sum of $150 a week. This contract could be terminated by either party at the end of any week. Claimant paid each musician his weekly salary, and the amount thereof was evidently arrived at between the claimant and each musician. He also hired and discharged the members of the orchestra, which was assembled for the particular engagement. The hours of performance were fixed of course to coincide with vaudeville acts. There is no evidence to sustain a finding that claimant and members of the orchestra were subject to complete direction and control by appellants. Nor is there any evidence to indicate that appellants had a right to discharge claimant at will, but only that the agreement by its terms might be terminated at the end of any week. We reach the conclusion that claimant was an independent contractor. Decision of the Unemployment Insurance Appeal Board reversed on the law, without costs, and claim dismissed. Hill, P. J., Crapser, Heffernan, Schenck and Foster, JJ., concur.