For the prosecutor, DeVoe Tomlinson (Albert E. Van Dusen, of the New York bar, of counsel).
PORTER, J. The respondent, Board of Review of the Unemployment Compensation Commission, awarded unemployment
The facts are not disputed. Handelong was employed by R.F. & R. L. Height, a partnership having two places of business. One was in New Brunswick in premises rented from the prosecutor, The Texas Company, where it sold gasoline and other petroleum products furnished by the prosecutor, automobile tires, tubes and accessories of the Firestone Tire & Rubber Company, anti-freeze mixture of the DuPont Company, electric products of the General Electric Company, fuel oil of the Royal Petroleum Corporation, radios, heaters, refrigerators, &c. The goods it sold of the Texas Company, the Firestone Company and the DuPont Company were all furnished by these companies under consignment agreements. The other place of business of the partnership was six to seven miles away in Middlesex Borough where an automobile service station was conducted, and gasoline, oil, grease and refreshments were sold. The partners had an investment in both businesses of about $14,000 consisting of three automobile oil tank trucks, one auto truck for general delivery purposes, stock of merchandise, fixtures and other equipment. Both partners, father and son, devoted all of their time and efforts to the business and in addition had six or seven employees. Handelong was employed from March, 1938, until November 16th, 1940, when he was discharged. The partnership employing less than eight persons was not subject to the provisions of the Unemployment Compensation Act, R.S. 43:21, et seq. Handelong claimed benefits under the statute, however, on the theory that the prosecutor was liable under R.S. 43:21-19 (g), the so-called contractor-sub-contractor "tacking" clause. The Board concluded that the quoted section applied and that Handelong was entitled to compensation. It rested its decision on this section and on Singer Sewing Machine Co. v. New Jersey Unemployment Compensation Commission, 128 N.J.L. 611; affirmed, 130 Id. 173. It also seemed to indicate in its opinion that prosecutor might also be the employer of Handelong, because the partnership was its agent under the consignment agreement
"It is agreed between all parties, at the outset, that claimant was an employee of the partnership and that he was not a servant or employee of the gasoline company ...