| N.Y. App. Div. | May 10, 1962
Judgment and order unanimously reversed on the law and facts and new trial granted, with costs to appellant to abide the event. Memorandum: This is an action on behalf of the estates of injured persons to reform an automobile liability insurance policy and, as reformed, to collect the amount of two judgments against the insured. The accident occurred August "24, 1952. The policy is dated August 26, 1952. It was issued under the Assigned Risk Plan (Insurance Law, § 63) which required that it be issued within two working days after receipt by the carrier of notice of designation. (Rules of New York Automobile Assigned Risk Plan, § 14.) The judgment reforming the policy rendering it effective on August 23, 1952 is predicated on a finding that defendant had received notice of designation on Thursday, August 21, 1952. The evidence does not sustain such finding and it follows that a new trial is required. Respondents adduced proof of the usual custom of typing and mailing in the office of the New York Assigned Risk Plan by the testimony of an assistant manager, who had no knowledge of this specific notice or of its handling. This proof was not sufficient to establish mailing of the notice of designation to the defendant without further evidence, which was lacking, that the typist, the typing supervisor and the mail room clerks had observed the custom. (Gardam & Son v. Batterson, 198 N.Y. 175" date_filed="1910-03-22" court="NY" case_name="William Gardam & Son v. Batterson">198 N. Y. 175.) (Appeal from judgment of Erie Trial Term for plaintiffs in an action by a judgment creditor under a liability insurance policy. The order denied a motion for a new trial.) Present — Bastow, J. P., Goldman, McClusky and Henry, JJ. [30 Misc. 2d 299" date_filed="1961-07-19" court="N.Y. Sup. Ct." case_name="Cary v. Atlantic Mutual Insurance">30 Misc 2d 299.]