On the present state of the record, there is no proof supporting the defendant’s contention that an independent contractor was engaged *771in the work, the negligent performance of which is shown to have caused the accident. The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event, with leave to the defendant to apply to the court at Special Term to amend its answer so as to deny, if it be so advised, the allegations of the 2d paragraph of the complaint, instead of admitting them as it now does. Present — Dowling, P. J., Merrill, Martin, O’Malley and Proskauer, JJ.; Dowling, P. J., and Proskauer, J., dissent and vote to affirm on the ground that there is no proof of negligence on the part of the defendant. Judgment reversed and new trial ordered, with costs to the appellant to abide the event, with leave to the defendant to apply to the' court at Special Term, to amend its answer so as to deny, if it be so advised, the allegations of the 2d paragraph of the complaint.