
    In the Matter of the Claim for Benefits under Article 18 of the Labor Law Made by Warren Whitcher, Claimant. Gannett Co., Inc. (Rochester Democrat & Chronicle), Appellant; Frieda S. Miller, Industrial Commissioner, Respondent.
   Gannett Co., Inc., has appealed from a decision of the Unemployment Insurance Appeal Board holding claimant to be an employee and entitled to benefits under the Unemployment Insurance Law. Claimant worked as a carrier boy delivering editions of appellant’s newspaper at Rochester, N. Y., from August 24, 1936, to October 15, 1939. Appellant contends that claimant is an independent contractor and not an employee and that in any event he is not entitled to unemployment insurance benefits because his claim was filed after June 30, 1939, in view of an amendment to the Labor Law [§ 502] in effect June 3, 1939, which excluded from the term “ employee ” newsboys under the age of twenty-one years who were regularly attending school in the day time. The Board found that claimant was an employee and there is evidence to sustain that finding. The fact that claimant did not file an application for benefits until after June 30, 1939, does not exclude him from coverage. Claimant ceased to be a student at any institution of learning before January 1, 1939. He has never been in attendance at a school since the adoption of the amendment. The amendment, therefore, is not applicable to him. Decision unanimously affirmed, with costs to the Industrial Commissioner. Present — Hill, P. J., Crapser, Bliss, Heffeman and Sehenek, JJ.  