(dissenting). This is an appeal from a decision by the Unemployment Insurance Appeal Board which affirmed a finding by a Referee holding appellant to be hable for the payment of unemployment insurance contributions based on the earnings of its salesmen. The ruling in question did not fix the amount to be paid and no undertaking on appeal was filed by appellant. The respondent Industrial Commissioner contends, accordingly, that there is a jurisdictional defect in this appeal in addition to the question of the determination of fact involved.
Although it is true that no determination of the amount of insurance to be paid has ever been made, and although, as a consequence, no undertaking has been filed pursuant to section 536 of article 18 of the Labor Law, I think that the principal question involved is properly before this court and that the defect is not jurisdictional but merely procedural. Inasmuch as the only point at issue here is the question of whether or not appellant is subject to the Unemployment Insurance Law as far as its salesmen are concerned, nothing would be gained by remitting the case to the Industrial Board for a monetary determination. The case can and should be determined here upon the merits.
The merits of the case devolve upon a question of fact. Are appellant’s salesmen employees or are they independent contractors? There is no question but that prior to July 1, 1938, appellant operated in New York State through a subsidiary, Electrolux, Inc., which was concededly subject to the Unemployment Insurance Law. This corporation was dissolved and appellant obtained permission to do business in New York State with virtually the same personnel as had been employed by the subsidiary. New contracts were drawn for the salesmen following this change. These contracts were designed apparently to characterize the'salesmen as independent contractors. The new plan seems beyond doubt to have been for the express purpose of avoiding compliance with the law in question.
The difficulty with appellant’s system, however, seems to be in the fact, as found by the Industrial Board, that appellant still exercises such a degree of control as to continue the salesmen as employees in fact rather than to make them independent contractors. The criterion is not what the salesmen are called but what they actually are. (Matter of Morton, 284 N. Y. 167.) *491Numerous cases have been cited by appellant to establish that these salesmen are independent contractors. Each case upon this point, however, must necessarily be decided upon its own peculiar state of facts, no two of which, as in the case of wills, are ever precisely alike. It is the function of the administrative authority to determine the facts presented in each case and “ where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the Board.” (Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256, 267.)
' In the instant case the salesmen can sell only at a fixed price, can take orders only upon appellant’s special blanks, must have all orders subject to inspection by a so-called “ verifier ” employed by appellant, and are paid commissions weekly. In addition, they are furnished with advertising matter, restricted to certain fixed territories, and given more or less uniform sales instructions. These and other points, such as the “ team ” system, indicate definitely that appellant’s salesmen are not independent contractors in the true sense of the word.
In this connection the case at bar is distinguished from Levine v. Aluminum Cooking Utensil Co., Inc. (258 App. Div. 1023; affd., 283 N. Y. 577). In that case the salesman was bonded, indicating a personal responsibility upon him that does not exist here. Furthermore, his sales were apparently not subject to the “ verification ” used in the instant case, which clearly shows that Electrolux Corporation maintained control of all sales in the final analysis. In addition, the Aluminmn salesman had a sort of culinary skill which he used in preparing “ sample dinners ” for prospective purchasers, an element which placed discretion in the salesman and which put him, while engaged in such activity at least, out of the control of the Aluminum Company. In view of these and other factual distinctions, which in similar manner distinguish the instant case from others urged by appellant, I think the decision should be affirmed. The true relationship was not evinced by the contract “ but that in addition the actual practice of the parties which supplemented the written contract had to be taken into account.” (Matter of Morton, supra.) Appellant should not be allowed to circumvent a provision of law, squarely intended to include appellant in its provisions, by the device employed herein.
The decision should be affirmed.
Foster, J., concurs.
Determination reversed on the law and matter dismissed, without costs.