The proceeding was instituted before the Department of Labor of the State of New York, Unemployment Insurance, Referee Section. There was an "initial determination” dated May 31st, 1941 (79); there was a request for a hearing by Roy Horton, claimant, dated December 13th, 1941 (85); there was a notice of hearing dated January 12th, 1942, for January 22nd, 1942 (91).

Claimant seeks unemployment insurance benefits. The defense thereto by Swift and Company, Inc., alleged employer, appellant, is that it was not his employer. The result was the decision rendered mentioned at the opening of this statement. The case was brought to this court by Swift and Company serving a notice of appeal (7). No opinion has been previously reported but this record contains an opinion of the Unemployment Insurance Appeal Board (19) and the unemployment insurance referee (49).

Facts

Before narrating details of the witnesses' testimony writer will state the facts from the whole record as follows:

Swift and Company, Inc., had an exhibit at the New York World's Fair which ran through seasons in 1939 and 1940 at the Fair Grounds in the vicinity of Flushing, New York City.

Swift and Company, Inc., and Dave McEnery (Red River Dave) entered into a written agreement dated July 29th, 1939, whereby the latter in consideration of $300 weekly agreed to furnish three cowboy musicians including himself who were to perform at the Swift exhibit. The contract provided that McEnery was to be an independent contractor (310). McEnery and the musicians, including Roy Horton, claimant, performed throughout the 1939 season. In 1940 the agreement was renewed without further writing for $240 weekly and the trio, including claimant, performed throughout that season until the close of the Fair.

Roy Horton, claimant, testified that in 1940 he performed as a member of a trio of musicians led by Dave McEnery at the World's Fair in that portion of the Fair operated by Swift and Company. He started on June 8th, 1940, and played until the end of the Fair (116-117); he played around seventeen or eighteen weeks until October 27th. In 1939 he also played there “until the middle of July—until the end of the Fair” (118). He testified that he was a member of the musicians union, the American Federation of Musicians, Local 802 (121). He did not know whether there was a written agreement covering the 1940 engagement; he did not know whether there was a written agreement covering the 1939 engagement until he saw it “here” (122-123); he established his connection with this trio with McEnery in 1939 when he met Benner (another member of the trio), and McEnery at the musicians union headquarters. They were to play for a week and after the first week they were held over and were still there at the end of the Fair (123-124). Claimant testified that he did not know McEnery's whereabouts now; it was somewhere in Texas; he wrote him a card and it was returned marked "Moved, no forwarding address” (128).

Claimant testified that several times they were sent to other exhibits. A note would come down from the office to go over to the various exhibits to perform instead of performing at Swift's (129). The notes would come from Mr. Wilson (Swift's manager of the exhibit); they would go to the

Ford Exhibit, Kraft and Perylon Hall. He wore a western uniform; Swift bought them (130). They did not use written music; they learned their music and played from memory; these songs that they did were traditional songs, folk songs of Texas and the West; they used their own instruments and balloons. They wore the same uniform at other exhibits (131-132). When they went to other exhibits they usually had supper banquets and they were requested to get there in time to have their meals. The musicians had their meals there. These suppers and banquets were for various clubs and groups by that exhibit. They played at Consolidated Edison building in the lounge where the executives were. They played at Ford and at the Overseas Press Club (134-135). If there was a master of ceremonies he announced that they were sent by the Swift exhibit to entertain. Nothing extra was paid for appearing at these other exhibits but the exhibit would send the musicians a little gift in appreciation (136). Several times like in RCA they did television shows. Several times there were other employees from Swift present. There would be other acts from other exhibits (137). When they appeared at the Ford Exhibit and at Consolidated Edison no one else from Swift and Company appeared at those other exhibits (138).

Claimant's exhibit 2, a photograph of the trio taken at the Ford Exhibit with a note attached (283) was admitted at folio 140 and claimant's exhibit 3 (286), a dinner menu in which the trio is mentioned on the entertainment program (292) was admitted in evidence (143). They played at Grover Whalen's estate on Long Island (144-145) and Mr. Whalen sent them an autographed photograph. There were pictures published in the New York Times, snaps taken at the Swift Exhibit