For the prosecutors, Leon Semer (Stephen F. Somogyi, of counsel).
For the defendant, Charles A. Malloy (Herman D. Ringle, of counsel).
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
COLIE, J. This writ of certiorari brings up for review a decision of the Unemployment Compensation Commission of New Jersey that "Wiley Motors, Inc., and Samuel E. Wiley t/a New Jersey Fulgent Co. are employers as of January 1st, 1936, in accordance with R.S. 43:21-19 (h) (1) by application of subsection 19 (h) (4) of the New Jersey Unemployment Compensation Law.
"The New Jersey Fulgent Co., Inc., is an employer as of May 29th, 1936, in accordance with R.S. 43:21-19 (h) (2).
"Wiley, Inc., is an employer as of March 4th, 1938, in accordance with R.S. 43:21-19 (h) (2)."
The holding above was rendered after a hearing upon the application of the prosecutors herein for a refund in the amount of $1,025.87, the sum paid by them under protest for contributions levied against them, or some of them, as employers for the years 1936, 1937, 1938 and 1939.
The facts are not in dispute. Wiley Motors, Inc., was organized in 1933; Samuel D. Wiley owning 100 shares of its capital stock and being its president and treasurer; Frank H. Durham, holding eight shares and being its vice-president; Ida Jaffe Hamburg, holding two shares and being secretary. The business of the corporation was the retail sale of motor trucks, tires, tubes and the repairing of trucks. It had two employees, exclusive of the officers. In the latter part of 1937 it ceased business and early in 1938 Wiley, Inc., was organized and succeeded to the business of its predecessor. Samuel D. Wiley was its president and treasurer, holding four shares of stock; Anna R. Wiley, his wife, also held four shares and was vice-president and secretary; Samuel Wiley (the father of Samuel D. Wiley) was not an officer but held four shares. The latter company also had five employees, including officers. In 1939 Wiley, Inc., ceased operations and is now dormant. New Jersey Fulgent Co., Inc., was organized in May of 1936; Samuel D. Wiley, president and treasurer holding eight shares; Anna R. Wiley, vice-president, holding one share; Ethel Kessler Shapiro, secretary, holding one share. Its total employees including officers, is six. Prior to its incorporation in 1936 the same business of manufacturing aeroplane flares
and signal devices was carried on by Samuel D. Wiley, individually, under the trade name of New Jersey Fulgent Co. It is conceded that the number of employees of the affiliated companies for the ...