
    Frank H. Hertzer, as Administrator of the Estate of Marie F. Hertzer, Deceased, Respondent, v. Henry Greenstein, Defendant, and Frank D. Creamer & Company, Appellant.
    (Argued February 2, 1925;
    decided March 3, 1925.)
    
      Negligence ■ — ■ master and servant — action to recover for death caused by negligence of driver of rented truck — liability of hirer of truck — when driver in employ of hirer.
    
    
      Hertzer v. Greenstein, 209 App. Div. 830, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 26, 1924, unanimously affirming a judgment in favor of plaintiff, entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. The intestate was run over and killed by an auto truck owned by the defendant Greenstein, the accident being caused by the negligence of the driver of another truck owned by one Bartley, but on the day of the accident rented to and under the control of defendant, appellant. The question was whether the negligent driver was in the employ of the defendant, appellant, at the time of the accident.
    
      Ralph E. Hemstreet, Lloyd B. Kanter and Oscar A. Lewis for appellant.
    
      Bernard J. Vincent and Samuel J. Foley, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, Crane, Andrews and Lehman, JJ. Absent: McLaughlin, J.  