(dissenting). While the facts are detailed in the majority statement, it is important to note that the claimant attended training school from May 4, 1970 through September 14, 1970 and for the entire period received a subsistence allowance for board and room. From June 29, 1970— September 14, 1970 because of the subject matter of the courses pursued by the claimant he received no additional allowance. From May 4, 1970 — June 28,1970 his courses consisted of basic and advanced electricity and as a result, under the collective bargaining union agreement, he was allotted an additional scholarship living allowance. For, this period, approval of his application for vocational training was disallowed because ‘6 you are receiving a training allowance from another fund in an amount greater than your benefit rate ”. Subsequently, it was determined that he was not entitled to unemployment insurance benefits as he was not available for work, the notice stating “ You are in full day time attendance at school and are not available to ship out”. It should be noted that the same full-day attendance governed from June 29-, 1970 — September 14,1970 when he was allowed benefits.
Upon appeal, the Referee found so far as pertinent: ‘ * Since the receipt of the allowance was the only ground for denial of the approval, it must be held that said claimant was entitled to receive such approval. By reason thereof, he may not be held unavailable because of his attendance on a full time basis at the vocational training course.” Thereafter, the board adopted the findings of fact and the opinion of the Referee as its opinion.
Section 599 of the Labor Law, the governing statute, is limited in scope as is best evidenced by the opening clause of the statute, *106“ Notwithstanding any other provision of this article ”, and thereafter, in preserving the eligibility of a claimant’s rights, specifically enumerates the conditions for the Commissioner’s approval of the course. Thus, in my opinion, the statute is limited and subject to strict construction. Reliance is placed upon a sentence therein which states as pertinent ‘ ‘ The commissioner shall give due consideration * * * and to any other relevant factor ”. It is contended that under the catchall “ relevant factor ”, the board should accept the.Commissioner’s interpretation as being binding upon it. The respective powers of the Commissioner and the Appeal Board have been considered and determined by prior decisions of this court. (See Matter of Marsh [Catherwood], 17 A D 2d 527, affd. 13 N Y 2d 235.)
It seems of necessity that what is “ relevant ” under the statute must be a factual issue. The Referee and the board found that the denial of vocational training and the subsequent disallowance of benefits were based solely on “the receipt of the allowance ”, which factual finding was not proper ground for denial and that, accordingly, the claimant was unavailable for work pursuant to section 599. Such determination was within the power and authority of the board and should be affirmed.
Greenblott, Sweeney and Kane, JJ., concur. Herlihy, P. J., dissents and votes to affirm in a separate opinion.
Decision reversed, and matter remitted for further proceedings not inconsistent herewith, without costs.