In re Petelinz , 9 A.D.2d 828 ( 1959 )

Appeal from a determination of the Unemployment held that the appellants were employers of two milk truckmen and liable for additional contributions under the Unemployment Insurance Law. The sole issue on appeal is whether the truckmen were employees or independent contractors. The parties operated under a written contract but the board had the power to look behind the terms of the written contract to determine the actual relationship between the parties (Matter of Clinton Builders Supply Corp. [Com], 283 App. Div. 830; Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60). The record indicates that the board had before it an issue of fact and substantial evidence to sustain its determination. The trucks used carried the dairy’s name and the truckmen wore uniforms which bore the same inscription. Only the appellants were licensed to distribute milk products along the routes worked by the truckmen. The latter had a daily routine of activities very similar to those of a milk truck driver serving one employer on a full-time basis. Collections were made from customers who paid cash on the delivery of the milk and these receipts were turned in by the truckmen at the end of each day. The truckmen were not permitted to sell products from any of the appellants’ competitors, and as a matter of fact they never used their trucks for any business purpose other than the distribution of appellants’ products. The foregoing facts and circumstances were sufficient in our opinion to empower the board to look behind the contract and determine as a factual matter that the truckmen were in reality employees and not independent contractors. Decision unanimously affirmed, with costs to the Industrial Commissioner. Present — Foster, P. J., Bergan, Coon, Gibson and Herlihy, JJ.