On appeal from the Supreme Court, whose opinion is reported in 135 N.J.L. 245.
For the prosecutor-appellant, Meyer M. Semel.
For the respondent-respondent, Dominic J. Hart, Herman D. Ringle and Charles A. Malloy.
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. The appeal is by Charles Kansel, trading as Uptown Printing Company, from a judgment entered against him in the Supreme Court affirming a determination of the Unemployment Compensation Commission and dismissing a writ of certiorari issued to Kansel to review the same.
Contributions were assessed upon the theory that certain shops outside of appellant's direct business came within the application of the following provision in R.S. 43:21-19(g):
"Whenever any employing unit contracts with or has under it any contractor or subcontractor for any employment which is part of its usual trade, occupation, profession, or business, unless the employing unit as well as each such contractor or subcontractor is an employer * * *, the employing unit shall for all the purposes of this chapter be deemed to employ each individual in the employ of each such contractor or subcontractor for each day during which such individual is engaged in performing such employment; * * *."
The appellant (prosecutor below) was an employing unit. He employed eight men or more, therefore was an employer in the statutory sense and paid the tax accordingly. The
question is whether the work which he had caused to be done outside of his shop comes within the application of the foregoing statutory provision inasmuch as the concerns which did that outside work did not severally employ eight men and so were not "employers" within the statutory definition. Of help in construing subsection (g) supra is subdivision (i) (6) of the same section, which provides that:
"(6) Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter 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 ...