| N.Y. App. Div. | Nov 13, 1940
The Industrial Commissioner has appealed from a decision of the Unemployment Insurance Appeal Board which affirmed a decision by an Unemployment Insurance- Referee holding that the employers were not subject employers within the meaning of section 502, subdivision 3, of the Unemployment Insurance Law (Labor Law, art. 18). Prior to September 23, 1937, George Joachim and Joseph Goldberg were engaged as copartners in a business which they operated as commission merchants for dress manufacturers and resident buyers for customers. On September 23, 1937, the partnership was dissolved and Joachim, Goldberg and one Samuel Bimbaum organized a corporation known as Joachim, Goldberg & Birnbaum, Inc. Bimbaum invested cash, Joachim and Goldberg contributed furniture, fixtures and an electric plant which formerly constituted a portion of the partnership assets. Each of the persons mentioned was an officer and shareholder in the corporation. The corporation was engaged in the same type of business which the partnership had conducted. On December 31, 1937, the corporation was insolvent and while it was not formally dissolved its corporate entity was abandoned. On January 1, 1938, Joachim and Bimbaum entered into a new partnership and engaged in the same type of business. The new partnership acquired the furniture and fixtures of the corporation. The partnership did not assume any of the obligations of the old partnership. The Unemployment Insurance Appeal Board held that the partnership was not a successor in interest to the abandoned corporation and was not subject to the Unemployment Insurance Law. The proof sustains the finding. Decision unanimously affirmed, with costs against appellant. Present — Hill, P. J., Crapser, Hefiernan, Sehenck and Foster, JJ.