Judgment entered in favor of plaintiff against the defendant, Williams, in the amount of $15,240.50, unanimously reversed, on the law, and complaint dismissed, with $50 costs to appellant. Concededly, the plaintiff here was bound to establish that he was an independent contractor and that the codefendant Washington was an employee of the appellant. Only on this theory would the appellant be chargeable for negligence of Washington and liable to plaintiff, and the trial court, without any exception, so charged the jury.
On the record here, however, it is clear that both the plaintiff and Washington stood in the same relationship to appellant. Both were hired at about the same time and on substantially the same terms to do the same job, namely, to move certain furniture for the appellant. There is nothing in the record to support a finding that one was an employee and the other an independent contractor. Finally, there being no proof as to the cause for the slipping of the closet, we agree with Mr. Justice Rabin that the evidence was insufficient to establish negligence on the part of Washington in his handling of the same.
Concur—Breitel, J. P., Stevens, Eager and Steuer, JJ.; Rabin, J., concurs in the result.