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Empire Theatre Inc. v. Unemployment Compensation Commission

New Jersey Supreme Court


Decided: October 20, 1947.

EMPIRE THEATRE, INC., AND ISADORE HIRST, PROSECUTORS,
v.
UNEMPLOYMENT COMPENSATION COMMISSION OF NEW JERSEY, DEFENDANT

On certiorari.

For the prosecutors, Harry Green.

For the defendant, Charles A. Malloy (Herman D. Ringle, of counsel).

Before Justices Donges, Colie and Eastwood.

Colie

[136 NJL Page 254]

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 "The services of the entertainers in question constituted employment as defined by the Unemployment Compensation Law, and the refund of the contributions paid by petitioners with respect to the remuneration of the entertainers is hereby denied." The question at issue is whether specialty act performers engaged in a burlesque theatre usually for a week, sometimes for two weeks in a year, receiving their pay from the theatre, are within the term "employment" as defined in R.S. 43:21-19. The applicable part of the cited section reads:

"(i) (1) 'Employment' means service, including service in interstate commerce performed for remuneration or under any contract of hire, written or oral, express or implied."

"(6) Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter

[136 NJL Page 255]

unless and until it is shown to the satisfaction of the commission that

"(A) such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

"(B) such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

"(C) such individual is customarily engaged in an independently established trade, occupation, profession or business."

In Electrolux Corp. v. Board of Review, 129 N.J.L. 157, the Court of Errors and Appeals held that all services performed by an individual for remuneration were employment within the purview of the act, unless all three tests enumerated above as A, B, C, are met. Referring to test B it is obvious that the service to be performed by the specialty artists in this case was not "outside of all the places of business of the enterprise for which such service is performed." Since the service does not meet test B above quoted, it is, under the cited decision, to be considered employment subject to the act. The writ of certiorari is dismissed, with costs.

19471020


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