In re the Application for a Hearing Pursuant to Section 523 of Unemployment Insurance Law of Siegel

The appellant has appealed to this court from a decision of the Unemployment Insurance Appeal Board which denied appellant’s claim for a refund under subdivision 3 of section 523 of the Unemployment Insurance Law (Labor Law,' §§ 500-539). The employer was a domestic corporation which owned and operated a chain of well-known cafeterias in the city of New York. It was subject to the Unemployment Insurance Law. On April 20, 1937, the employer filed a petition for reorganization under section 77B of the Bankruptcy Act of the United States. The petition was approved by the United States District Court and the debtor-employer was authorized to temporarily remain in possession of its assets and to continue its business. Shortly afterwards the debtor made two payments aggregating the sum of $2,274.85 to the Division of Placement and Unemployment Insurance of the Department of Labor of the State of New York in payment of unemployment insurance contributions due and payable from the employer for a period of time preceding the filing of said petition for reorganization. Later on the trustee in bankruptcy pursuant to an order of the referee in bankruptcy *790paid the Division of Placement and Unemployment Insurance $5,965.29. This latter sum represented contributions accrued while the debtor was in possession. These payments were voluntarily made. An application was made to the Division of Placement and Unemployment Insurance pursuant to subdivision 3 of section 523 for refund of the sums paid. It was denied upon the grounds that the payments were rightfully made and that the sums represented contributions due the New York State Unemployment Insurance Fund by the employer and that they were not erroneously collected. The application of the appellant for refund can only be predicated upon subdivision 3 of section 523 of the Unemployment Insurance Law. This constitutes appellant’s only and exclusive remedy. He has not brought himself within the provisions of the section and the decision of the Appeal Board should be affirmed. Decision of the Appeal Board unanimously affirmed, with costs to the Industrial Commissioner. Present — Hill, P. J., Crapser, Heffernan, Schenck and Foster, JJ.