Andrew Wagner, as Administrator, etc., of Paul Wagner, Deceased, Respondent, Appellant, v. Rodgers & Hagerty, Inc., Appellant, Impleaded with Motor Truck Renting Corporation, Defendant, and Hagerty Motor Trucking Company, Respondent

Andrew Wagner, as Administrator, etc., of Paul Wagner, Deceased, Respondent, Appellant, v. Rodgers & Hagerty, Inc., Appellant, Impleaded with Motor Truck Renting Corporation, Defendant, and Hagerty Motor Trucking Company, Respondent. [MAJORITY] Judgment and order in favor of plaintiff and against Rodgers & Hagerty, Incorporated, reversed, upon the ground that the finding of the jury that the driver of the truck concerned in the accident was in the employ of the said defendant is contrary to the evidence. The judgment and order in favor of the Hagerty Motor Trucking Company, dismissing the complaint, reversed upon the ground that the jury was authorized to find upon tite evidence that the said driver was in the employ of the said Hagerty Motor Trucking Company; and a new trial granted, costs to abide the event. Jenks, P. J., Rich, Putnam and Jayeox, JJ., concur; Kelly, J., dissents.