Judgments and order affirmed, with costs. All concur, except Bastow and Halpern, JJ., who dissent and vote for reversal on the law and facts and for granting a new trial in the following memorandum: Upon the evidence in this case it was error for the trial court to charge as a matter of law that the codefendant trucker was an independent contractor and not a servant of the defendant-respondent for whose negligence the latter might be vicariously liable under the doctrine of respondeat superior. The tests to be applied have been frequently stated. (Restatement, Agency 2d, § 220; 2 Harper & James, Law of Torts, § 26.11; Prosser, Torts [2d ed.], pp. 351-354.) The nature of the relationship was a question of fact to be determined by the jury (cf. Johnson v. B. T. K. Petroleum Co., 289 N. Y. 101; Rich v. Colony Fuel Oil Co., 277 App. Div. 888). The trial court further erred in refusing to charge that liability could be imposed upon the defendant-respondent, even if the codefendant trucker was an independent contractor, if the former knew or should have known that the trucker “was overloading his truck” and that the truck “had a defective left front tire.” (Restatement, ■Torts, § 411, comment a; Mechem, Outlines of Agency [4th ed.], § 494; Kuhn v. Carlin Constr. Go., 154 Mise. 892; cf. Rosenberg v. Schwartz, 260 N. Y. 162, 166; Katapodis v. La Salle Trucking Corp., 293 N. Y. 229.) (Appeal from two judgments of Chautauqua Trial Term for defendant for no cause of action. The order denied a motion for a new trial in a negligence action.) Present — MeCurn, P. J., Kimball, Williams, Bastow and Halpern, JJ.