Curtis v. Liberty Restaurant, A--97

• Decision Date: 18 May 1949
• Docket Number: No. A--97,A--97
• Citation: 66 A.2d 199,4 N.J.Super. 13
• Parties: CURTIS v. LIBERTY RESTAURANT et al.
• Court: New Jersey Superior Court — Appellate Division

Page 13

4 N.J.Super. 13

66 A.2d 199

CURTIS v. LIBERTY RESTAURANT et al.

No. A--97.

Superior Court of New Jersey

Appellate Division, Part A.

Argued May 9, 1949.

Decided May 18, 1949.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Mr. Nicholas J. Curtis, claimant-appellant, attorney pro se, argued the cause.

Mr. Clarence F. McGovern, Trenton, argued the cause for the respondent Board of Review.

PER CURIAM.

This is an appeal from a determination of the Board of Review of the Division of Employment Security of the State Department of Labor and Industry, formerly known as the Board of Review of the Unemployment Compensation Commission, fixing the benefits to which appellant was entitled. Appellant's claim was presented and decided by virtue of the provisions of the Unemployment Compensation law, R.S. 43:21 et seq., N.J.S.A.

The only question raised by this appeal is a factual one. Appellant contended below, as he does here, that for the base year covering the period from October 1, 1945 to September 30, 1946, the benefit formula should have been calculated on his total earnings of $1820, entitling him to weekly benefits of $21, whereas the employer-respondent, Liberty Restaurant, represented that Curtis' total wages for the base year were $815.65, with highest quarterly earnings of $258.50 for the quarter ending June 30, 1946. Following several hearings, the Board of Review decided that Curtis was entitled to benefits as to the maximum total amount and the weekly rate in accordance with wages reported by the employer for the base year, totalling $815.65, with highest quarterly earnings of $258.50, thereby making appellant eligible for weekly benefits of $12 and the maximum amount of $272.

Under R. 3:81--13, in appeals from administrative agencies, this court has '* * * power to review the facts and make independent findings thereon, which power may be exercised by it to such extent as the interests of justice may require.' Under R. 1:2--20 and 4:2--6, dealing with a review of a cause involving issues of fact not determined by a verdict of a jury, '* * * due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' The testimony proferred respectively by the employee and employer was quite contradictory and the credibility of the witnesses on the crucial point of inquiry was sharply controverted. The Board of Review had the advantage of personal observation of the witnesses. As Mr....