(dissenting). I dissent from Mr. Justice Heffernan’s learned and well-argued opinion. When this matter was before us on a previous occasion I voted to decide the case upon the merits and, in so doing, to affirm the decision of the Unemployment Insurance Appeal Board. At that time, however, the majority of this court determined the matter upon purely jurisdictional ground. Now that the Court of Appeals has remitted the case to us for a decision on the merits, it is incumbent upon me to either stand upon the ground on which I wrote the dissenting opinion in Matter of Electrolux Corporation (261 App. Div. 487), or else to reverse the position taken by me in that case. I have determined upon the former course in the belief that the position there taken was founded upon judicial decision.
It is true that a taxpayer may take advantage of all means permitted by law to reduce the amount of taxes to be paid. It is *653not sufficient, however, for the taxpayer by mere forms to characterize itself as being in a tax exempt category. In the instant case, the appellant’s predecessor, Electrolux, Inc., was concededly subject to the Unemployment Insurance Law. As I stated in the earlier case, I do not believe that the contracts drawn for the salesmen under the new set-up and the changed formalities in their methods of making sales transformed these salesmen into independent contractors.
In this connection, and also in connection with several of the other points so carefully discussed by Mr. Justice Hefpernan, I herewith quote part of my opinion in the earlier case, the statements therein contained being a comparatively brief outline of my present position.
“ 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.) Numerous 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 *654by 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 Aluminum 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 decision appealed from should be affirmed.
Decision reversed and proceeding dismissed, with costs to appellant against the Industrial Commissioner.