
    In the Matter of the Claim for Benefits under Article 18 of the Labor Law Made by Lillie A. Thompson, Claimant. Sagtikos Farm, Inc., Appellant; Frieda S. Miller, as Industrial Commissioner, Respondent.
   This is an appeal by Sagtikos Farm, Inc., employer-appellant, from the decision of the Unemployment Insurance Appeal Board, which affirmed the decision of the Unemployment Insurance Referee holding that claimant worked in covered employment in the year 1938 and is to be credited with her earnings therein with the employer. The sole issue presented by this appeal is whether this court must hold as a matter of law that the claimant is ineligible for unemployment insurance benefits because she is engaged in employment as a “farm laborer.” The Unemployment Insurance Appeal Board has found as a fact that she was not a farm laborer. Section 502 of the Unemployment Insurance Law (Labor Law, §§ 500-539) provides that Employment,” except where the context shows otherwise, means any employment under a contract of hire in which all or the greater part of the work is to be performed within the State. “But for the purposes of this article, ‘employment’ shall not include * * * employment as a farm laborer.” Sagtikos Farm, Inc., conducted a farm at Bay Shore, Suffolk county. It also operated a milk depot at Merrick, Nassau county. The evidence shows that the milk depot was a separate establishment located approximately twenty miles from the farm and that at the milk distributing plant, claimant was employed at a clerical worker keeping the records of milk returned by the several drivers there employed, and the cash taken in. Claimant kept no records whatever pertaining to the operation of the farm at Bay Shore. The Appeal Board found that as the distributing station was located seventeen miles from the farm and had a separate stall, consisting of a bookkeeper, manager and route drivers, engaged in a retail distribution of milk it would be a distortion of the law to hold that the operation of this distributing station, a purely commercial venture, located seventeen miles from the farm where the products were raised, is part of farming operations.” Subdivision 11 of section 502 of the Labor Law provides that: “ The term farm laborer ’ shall include any person employed on a farm in connection with: (a) the cultivation and tillage of the soil; (b) the planting, cultivation and harvesting of agricultural, horticultural, floricultura!, vegetable and food products of the soil; (e) the raising, feeding and care of live stock, bees and poultry, including afl domesticated birds or fowl, or in connection with the hatching of poultry, and the production or harvesting of maple syrup and maple sugar; (d) the handling, planting, drying, packing, packaging, processing, freezing, grading, preparing for market, storing, or delivering to storage or to market or to a carrier for transportation to market of any agricultural, horticultural or florieultural commodity; but only if such service is performed as an incident to ordinary agricultural, horticultural or florieultural operations or in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural, horticultural or florieultural commodity after its delivery to a terminal market for distribution for consumption. As used in this subdivision, the term ‘ farm ’ includes stock, dairy, poultry, fruit, and truck farms, plantations, ranches, orchards, nurseries, ranges, greenhouses or other structures used primarily for the raising of agricultural, horticultural or florieultural commodities.” Clearly, the finding of the Appeal Board that the employment of claimant was distinct from the farming operations of appellant is substantiated by legal evidence, and the decision of the Appeal Board should be affirmed. Decision affirmed, with costs to the Industrial Commissioner. Hill, P. J., Heffeman, Schenck and Foster, JJ., concur; Crapser, J., dissents and votes to reverse the determination of the Appeal Board on the ground that the work carried on by this claimant was an incident to ordinary farming operations as distinguished from manufacturing and commercial operations and was part of the farm work.  