(dissenting). In this action brought by plaintiffs for recovery of damages resulting from a water main break, the jury found in their favor against both defendants; and as between them, 70% against Consolidated Edison Co. of New York ("Con Ed”) and 30% against the City of New York ("the City”). The case was submitted to the jury against the City solely on the theory of res ipso loquitur and against Con Ed upon specific evidence of affirmative acts of negligence and proximate cause. Implicit in the jury’s verdict, fully supported by the evidence, was the finding that Con Ed was primarily responsible for the accident. Under such circumstance, the doctrine of res ipso loquitur cannot be applied against the City.
The "uncertain 'doctrine’ of res ipso loquitur” had its genesis in a casual remark of Baron Pollack in a 112-year old English case (Byrne v Boadle, 1863, 2 H. & C. 722, 159 Eng. Rep 299) and has become "the source of * * * much trouble to the courts.” (Prosser, Torts [4th ed], § 39, p 213.) Nevertheless, it is still accepted and applied in our courts, provided: "(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the *305defendant; (3) it must not have been due to any voluntary action or contribution on the part of plaintiff.” (Id., at p 214.)
The doctrine is not an arbitrary rule but, "rather a common-sense appraisal of the probative value of circumstantial evidence” (Galbraith v Busch, 267 NY 230, 234) and only "a formulation of a species of circumstantial evidence” (Zaninovich v American Airlines, 26 AD2d 155, 157; see, also, Cooke v Bernstein, 45 AD2d 497, 499). It may not be applied merely on plaintiff’s proof of injury due to someone’s negligence; or "where the unexplained accident may be attributable to one of several causes, for some of which the defendant is not responsible, or to a cause other than the defendant’s negligence”. (58 Am Jur 2d, Negligence, § 508, p 94. See, also, Prosser, Torts [4th ed], supra, p 218; Corcoran v Banner Super Market, 19 NY2d 425, 431.)
While not disputing the rationale for the doctrine, Con Ed nevertheless contends that it may be invoked against one defendant while specific negligence is proven on the part of another defendant. However, this is but another illustration, in my view, of the rule that a plaintiff may rely on both specific acts of negligence and res ipso, leaving it to the jury to either accept the specific acts pleaded or to reject such specific proof but still find for plaintiff on the basis of the inference. If the jury, as in the case at bar, credits the proven acts of negligence, the doctrine is no longer needed. (Abbott v Page Airways, 23 NY2d 502, 513.)
There are, of course, instances when res ipso may be applied against more than one defendant. However, in each case some relationship between the defendants must first be established, such as joint control of the instrumentality causing the accident (Corcoran v Banner Super Market, 19 NY2d 425; Schroeder v City & County Sav. Bank, 293 NY 370) or a vicarious liability (Smith v Jay Apts., 33 AD2d 624; see, also, Prosser, Torts [4th ed], supra, p 221; Ann 38 ALR2d 905, 908; 58 Am Jur 2d, § 503, p 87.)
In sum, res ipso is inapplicable against the City where, as here, there is a more than remote possibility (confirmed in the instant case by the jury’s apportionment) that the cause of the accident was the negligence of Con Ed (cf. Feblot v New York Times Co., 32 NY2d 486; Cameron v Bohack Co., 27 AD2d 362); and there is no basis on which to hold them both liable in solido. (Wolf v American Tract Soc., 164 NY 30.)
Accordingly, the judgment for plaintiff against the City *306should be reversed and the case dismissed against said defendant.
Stevens, P. J., Lane and Nunez, JJ., concur with Kupferman, J.; Murphy, J., dissents in an opinion.
Interlocutory judgment of the Supreme Court, New York County, entered on June 21, 1974, affirmed, without costs and without disbursements.