9 A.D.2d 461 | N.Y. App. Div. | 1959
The appellant issued a policy of automobile liability insurance to the respondent' Williams through one W. Eugene Dennis, its agent in Ithaca, which purported to cover a 1950 Studebaker from January 26, 1957 to January 26, 1958. Williams account had been transferred by another agent to Dennis in the Summer of 1956 and at that time he was insured by another company under the Assigned Risk Plan. Late in February, 1957 Williams went to the office of Dennis and had him change the policy coverage to a 1953 Chevrolet. The premium for the policy had not been paid at that time and Dennis testified that he continued to bill Williams until April, 1957 when he turned it over to a collection agency but that the bill was never paid. In December, 1957 Dennis received a renewal policy from the appellant for Williams. He testified that he then tried to contact Williams by phone and by going to Newfield on two occasions without success. Williams had moved from Newfield to Ithaca between December, 1956 and February, 1957 and although he notified the Motor Vehicle Bureau and left a change of address at the Newfield Post Office he did not notify Dennis of the change. On January 17,1958 Dennis returned the renewal policy to the appellant marked “ Cancelled Flat 1/17/58 Not Taken Ret. Prem.”, this meaning that the insured did not want the policy renewed. The Commissioner of Motor Vehicles was notified by Dennis that coverage of the 1950 Studebaker was terminated as of January 31, 1958 and the appellant sent a corrected notice stating the termination date as January 26, 1958.
While driving the 1953 Chevrolet on March 3, 1958 Williams had an accident and the respondents Stanton and Seitz, who were passengers in the car, were injured. The appellant instituted an action for declaratory judgment against Williams, Stanton and Seitz to determine whether it is obligated to defend and indemnify Williams as to the claims arising from the accident. Williams counterclaimed for a declaratory judgment. The court below held that there was a unilateral failure to renew by the appellant so that its failure to send a notice of termination to Williams under section 93-c of the Vehicle and Traffic Law effectuated a continuation of the insurance. The appellant’s complaint against Stanton and Seitz was dismissed with costs and Williams counterclaim was granted with costs.
The appellant contends that in any event it was error to dismiss its complaint as to Stanton and Seitz since a proper case for a declaratory judgment was made out. It is well established that a complaint in an action for declaratory judgment should not be dismissed merely because the plaintiff is not entitled to a declaration of the merits as he sees them and that a declaration should be made, even though in the defendant’s favor (Rockland Light and Power Co. v. City of New York, 289 N. Y. 45; Marshall v. City of Norwich, 1 A D 2d 498). Since the appellant presented a justiciable controversy a judgment declaring the rights between it and Stanton and Seitz should have been granted similar to that granted to Williams herein. Under rule 214 of the Rules of Civil Practice costs in
Judgment as to respondent Williams should be affirmed; judgment in favor of the respondents Stanton and Seitz should be modified by directing entry of a declaratory judgment in favor of the respondents Stanton and Seitz and as modified affirmed, with costs to the respondents.
Foster, P. J., Bergan, Gibson and Herlihy, JJ., concur.
Judgment as to respondent Williams affirmed; judgment in favor of the respondents Stanton and Seitz modified on the law and facts by directing entry of a declaratory judgment in favor of the respondents Stanton and Seitz and as modified affirmed, with costs to the respondents.
Settle order.