In re the Claim of England

Kane, J.

This is an appeal from a decision of the Unemployment Insurance Appeal Board, filed October 1, 1973, which determined that appellant employer is liable for the payment of unemployment insurance contributions.

Appellant, Post Reporting Service, is in the business of providing stenographic services. Various municipal bodies or subdivisions thereof and attorneys seeking a stenographer for an examination before trial constitute the bulk of requests for services. In The operation of her business appellant kept a list of about 40 reporters who were periodically called upon for assignment. Some of the reporters transcribed their own work and others did not, in which event their work was referred to a typist for transcribing. The majority of the reporters’ work was done in attorneys’ offices, libraries or municipal buildings while the transcribing was done in the home of the typist or reporter. Appellant’s quarters consisted of a small private office, a slightly larger office used for an occasional examinaion before trial and a waiting or reception room. Appellant provided carbon paper, typing paper and backers, while the reporters furnished their own equipment and supplies. Customers were billed by appellant and the reporters and typists were paid by her and, on many occasions, in advance. Social Security taxes were deducted but income taxes were not withheld. Reporters and typists were able to avoid or delay assignments when it did not suit their schedule but extended periods of vacation were cleared with appellant. Some of the personnel had part-time jobs and were not available except on certain days or parts thereof.

The sole question presented by this appeal is whether there is substantial evidence to support the board’s finding that the reporters and typists were employees and not independent contractors. As was pointed out in Matter of Smith (Catherwood) (26 A D 2d 459, 461), the existence of an employer-employee relationship in a given case is susceptible to many factors, with no one factor being determinative, and each case must be decided upon its own facts.

The findings of fact made by the Referee herein and adopted by respondent describe, in our view, an independent contractor and not an employee.

The work performed by the stenotype operators and the various typists seems to fit the precise situation described by this court in Matter of Smith (Catherwood) {sufra). Accordingly, the decision of the board must be reversed.

The decision should be reversed, with costs, and the matter remitted for further proceedings not inconsistent herewith.