In re Warren Mosher Co. — 289 N.Y. 417

Majority

p. 417

In the Matter of Warren Mosher Co., Inc., Respondent. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant.

Argued November 23, 1942;

decided January 14, 1943.

p. 418

John J. Bennett, Jr., Attorney-General (Leo G. Hosenfeld and W. Gerard Ryan of counsel), for appellant.

There is sufficient legal evidence to sustain the finding of the Appeal Board that the persons soliciting advertising for respondent were its employees. (Matter of Glielmi v. Netherlands Dairy Co., 254 N. Y. 60 ; Matter of Morton, 284 N. Y. 167 .) The. claim for contributions paid in 1936 and 1937 is barred by subdivision 3 of section 523 of the Labor Law (Cons. Laws; eh. 31, as amd. L. 1938, ch. 10). (People ex rel. Bankers Trust Co. v. Graves, 270 N. Y. 316 ; Matter of Hoople, 179 N. Y. 308 ; People ex rel. International Salt Co. v. Graves, 267 N. Y. 149 ; Ross v. State, 186 App. Div. 156 ; Matter of Furey v. Graves, 148 Misc. 785 ; 241 App. Div. 897 ; 266 N. Y. 415 .)

C. Murray Kavanagh for respondent.

The Appeal Board by affirming the decision of the referee has necessarily found as a fact that the respondent maintained no direction and control over the sohcitors’ time and method of work and therefore it has disclosed that the record contains no substantial legal evidence to-support, a conclusion that the solicitors were employees. (Matter

p. 419

of Morton, 284 N. Y. 167 ; Matter of Electrolux Corp., 288 N. Y. 440 .) The allowance of the full amount of the refund claimed, because the solicitors are independent contractors, was proper. The Statute of Limitations does not apply where the State was without jurisdiction. (Matter of Dee v. State Tax Comm., 257 App. Div. 531 ; 282 N. Y. 617 .)

The claim of the respondent for a refund of the contributions paid during the years 1936 and 1937 was barred by the provisions of the former subdivision 3 of section 523 of the Labor Law (Cons. Laws, eh. 31). (See now, § 516-a.)

The order of the Appellate Division should be modified accordingly and, as so modified, affirmed, without costs.

Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.

Cases cited

Claim of Glielmi v. Netherland Dairy Co. 254 N. Y. 60 N.Y. 1930-06-03 p. 418
In re the Claim of Morton 284 N. Y. 167 N.Y. 1940-11-19 p. 418, p. 419
People ex rel. Bankers Trust Co. v. Graves 270 N. Y. 316 N.Y. 1936-03-10 p. 418
In re the Appraisal Under the Transfer Tax Act of the Estate of Hoople 179 N. Y. 308 N.Y. 1904-10-28 p. 418
People ex rel. International Salt Co. v. Graves 267 N. Y. 149 N.Y. 1935-04-16 p. 418
Furey v. Graves 148 Misc. 785 N.Y. Sup. Ct. 1933-09-07 p. 418
Furey v. Graves 266 N. Y. 415 N.Y. 1934-12-04 p. 418
In re Electrolux Corp. 288 N. Y. 440 N.Y. 1942-07-29 p. 419
Dee v. State Tax Commission 282 N. Y. 617 N.Y. 1940-01-25 p. 419