Johnson v. R. T. K. Petroleum Co.

Per Curiam. On this record it was error to hold as a matter of law that the co-defendant driver and owner of the truck was an independent contractor rather than a servant of the corporate *104 defendant. The nature of the relationship existing was a question of fact which the trier of the facts resolved in favor of the plaintiff. (See Braxton v. Mendelsohn, 233 N. Y. 122; Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60; Irwin v. Klein, 271 N. Y. 477; Fritz v. Krasne, 273 N. Y. 649.) The evidence sustains that finding. The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed with costs in this court and in the Appellate Division. (See 289 N. Y. 647.) Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur. Judgment accordingly.