In Re the Claim of Tucker , 209 N.Y.S.2d 829 ( 1960 )

8 N.Y.2d 1145 (1960)

In the Matter of the Claim of Judy Tucker, Appellant. Isador Lubin, as Industrial Commissioner, Respondent.

Court of Appeals of the State of New York.

Argued October 6, 1960. Reargued November 29, 1960. Decided December 1, 1960.

Arthur Kamell and George A. Nicolaw for appellant.

Louis J. Lefkowitz, Attorney-General (Samuel Stern and Harold F. Lee of counsel), for respondent.

Concur: Chief Judge DESMOND and Judges DYE, FULD and NOLAN^[*]. Judge BURKE dissents in an opinion, in which Judges FROESSEL and VAN VOORHIS concur.

Upon reargument: Order reversed, with costs, and the decision of the Unemployment Insurance Appeal Board reinstated upon the ground that there was adequate support in the record for the board's finding that claimant was not reasonably fitted by training and experience to take a position as typist (Labor Law, § 591, subd. 2; Matter of Burger [Corsi], 303 N.Y. 654).

BURKE, J. (dissenting).

Where a claim for benefits under article 18 of the Labor Law can be recognized only if the claimant's employment as a typist, secured through an oral and written representation made by the claimant that she was a skilled typist and had been previously employed as such, is accepted by the Department of Labor as a necessary part of the required period of covered employment, it cannot be said that there is substantial evidence that the claimant is not reasonably fitted by training and experience to be a typist.

The claimant, having proven by an approved performance that she was well qualified to be a typist by the training and experience she had asserted she possessed, is as a matter of law ineligible for unemployment insurance benefits when she refuses a re-employment as a typist by the satisfied former employer (Labor Law, § 591, subd. 2).

Therefore, the order of the Appellate Division should be affirmed.

Order reversed, etc.

NOTES

[*] Designated pursuant to section 5 of article VI of the State Constitution in place of Judge FOSTER, disqualified.