The record contains substantial evidence to support the finding of the board that on May 29, 1970 the claimant’s employment was unilaterally terminated by the employer. As found by the board, there had been no retirement by the claimant as of the date his employment was terminated and his application for benefits under a so-called , “ retirement plan ” was made on June 1, 1970 and the claimant did not retire within the meaning of section 600 of the Labor Law. (See Matter of Guilfoyle [Catherwood], 36 A D 2d 108, affd. 30 N Y 2d 784.) In this case the claimant had no vested right to any present benefits at the age of 62 and payments could only be made to him by the plan if the employer and/or the “Committee” deemed the payment of benefits “ appropriate ”. While early retirement benefits under the plan might be considered as retirement benefits and certainly would seem to be such in the case of an employee who voluntarily terminated his employment, in the case of a worker who is discharged or retired by the employer, the payments merely represent a possible gratuity covering the years until such employee would reach age 65 at which time under this plan he would be entitled to benefits. Since the record does not mandate the factual conclusion that the claimant either voluntarily retired or was retired by the employer, the nature of the benefits which he received under the contractual plan of the employer was one of fact for the board and its finding upon such issue should be conclusive.
The decision should be affirmed.
Cooke, Sweeney and Kane, JJ., concur with Main, J.; Heblihy, P. J., dissents and votes to affirm in a separate opinion.
Decision reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith.