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Fenwick v. Unemployment Compensation Commission

Decided: September 27, 1945.

JOHN R. FENWICK, TRADING AS UNITED BEAUTY SHOPPE, PROSECUTOR-RESPONDENT,
v.
UNEMPLOYMENT COMPENSATION COMMISSION OF NEW JERSEY, DEFENDANT-APPELLANT



On appeal from a judgment of the Supreme Court, whose opinion is reported in 132 N.J.L. 185.

For the defendant-appellant, Charles A. Malloy and Herman D. Ringle.

For the prosecutor-respondent, Jacob M. Goldberg.

Donges

The opinion of the court was delivered by

DONGES, J. This is an appeal from a judgment of the Supreme Court reversing a determination of the Unemployment Compensation Commission. The question involved is whether one Arline Chesire was, from January 1st, 1939, to January 1st, 1942, a partner or an employee of the prosecutor-respondent, John R. Fenwick, trading as United Beauty Shoppe. If she was an employee, then she was the eighth and deciding employee for the purpose of determining the status of the respondent for the year 1939 as an employer subject to the terms of the statute. It is not the contention of the appellant commission that there was a fraudulent intent to avoid the act but the case is submitted as one of legal construction of the relation between Mrs. Chesire and the respondent.

Respondent, Fenwick, commenced operation of the beauty shop in Newark in November, 1936. In either 1937 or early 1938 he employed Mrs. Chesire as a cashier and reception

clerk. Apparently her duties were to receive customers, take their orders for services to be performed by the operators, and collect the charges therefor. The shop did not work on an appointment basis but on a "first come-first served" plan. Mrs. Chesire was employed at a salary of $15 per week and continued at that salary until December, 1938, when she requested an increase. Respondent expressed a willingness to pay higher wages if the income of the shop warranted it. Thereupon an agreement was entered into by the parties. This agreement was drawn by a lawyer who had offices nearby and provided:

1. That the parties associate themselves into a partnership to commence January 1st, 1939.

2. That the business shall be the operation of the beauty shop.

3. That the name shall be United Beauty Shoppe.

4. That no capital investment shall be made by Mrs. Chesire.

5. That the control and management of the business shall be vested in Fenwick.

6. That Mrs. Chesire is to act as cashier and reception clerk at a salary of $15 per week and a bonus at the end of the year of 20% of the net ...


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