59 A.D.2d 1052 | N.Y. App. Div. | 1977
Judgment unanimously affirmed, with costs. Memorandum: Defendant Merchants Mutual Insurance Company (Merchants) appeals from a judgment which declared that it is obligated to defend plaintiff-respondent in a personal injury action brought against him by one Martin Lebender. The alleged injury to Lebender on July 28, 1972 occurred when he was cutting through a steel barrel or drum which he had obtained from respondent’s place of business. The respondent has been engaged in operating an automobile salvage business since 1934 under the name of Calkins Garage. In that business he dismantled automobiles and stored and sold used parts from the vehicles. Respondent used steel drums for the storage of fluids and disassembled used parts and for other purposes. He also sold drums at retail. Although he installed engines, transmissions and windshields which he sold, he did not repair or service automobiles and did not sell gasoline and oil. In 1969 respondent purchased a general liability insurance policy from a friend who was an agent of Merchants. The policy carried the name of the insured as "Harold Calkins d/b/a Calkins Garage”. The agent was familiar with the nature of respondent’s business operation and knew of the use of drums in