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Paramus Bathing Beach Inc. v. Division of Employment Security

Decided: June 11, 1954.

PARAMUS BATHING BEACH, INC., APPELLANT,
v.
DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Jayne, Stanton and Hall. The opinion of the court was delivered by Jayne, S.j.a.d.

Jayne

On March 21, 1952 the Director of the Division of Employment Security officially resolved that the present appellant, Paramus Bathing Beach, Inc., a corporation of New Jersey, attained as of January 1, 1946 subject status under the terms and provisions of subsection 19(h)(1) of the Unemployment Compensation Law. R.S. 43:21-19. His determination was thereafter affirmed by the Acting Commissioner of Labor and Industry and the affirmance is now transported to us for review by the present appeal.

Initially, we consult the pertinent subsection of the statute. It reads:

"(h) 'Employer' means:

(1) Any employing unit which for some portion of a day, but not necessarily simultaneously, in each of twenty different weeks, whether or not such weeks are or were consecutive, within either the current

or the preceding calendar year, has or had in employment four or more individuals (irrespective of whether the same individuals are or were employed in each such day)."

In its full breadth the controversial question is whether the appellant in the existing factual circumstances disclosed by the evidence was an employing unit having in employment in each of 20 different weeks , within either the current or the preceding calendar year of 1945, four or more individuals, within the import of the statute. Our underscoring indicates the elements or subjects of basic consideration.

It is evident that the corporation has continuously during each fiscal year since 1935 paid a salary to its president, vice-president, secretary, and treasurer. We quote the additional factual findings of the Commissioner:

"Subsequent to May 1935 the officers of the corporation received annual salaries which varied in amount according to the income of the corporation. In 1945 the president received $4,000, which took the form of two payments of $2,000 each, made on July 2, 1945, and September 5, 1945. The vice-president also received $4,000, which took the form of two payments of $2,000 each, made on July 2, 1945, and September 5, 1945. The treasurer and the secretary received $200 a month throughout the year 1945. The salaries were not paid to the officers with respect to any particular services rendered by them or with respect to any particular period of the fiscal year of the corporation which ended on September 30, 1945. Social security returns were filed with the Federal Government in January, April, July and October, 1945; other corporate returns and checks were signed in accordance with the decision of the directors.

The principal business of the corporation was the operation of a bathing beach at Paramus, New Jersey. In 1945 one of the officers prepared the beach for use during the week preceding Decoration Day. During the bathing season, which closed on Labor Day, all the officers, as well as other hired employees, did work for the corporation."

The four individuals required in number by the statute are thus identified. The inquiry, therefore, diminishes to whether the four were in employment by the corporation in each of 20 different weeks. In its pragmatical form the question is whether or not the four officers were in ...


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