257 A.D. 923 | N.Y. App. Div. | 1939
Order denying resettlement reversed on the law, with ten dollars costs and disbursements, and motion granted to modify the judgment by striking out the phrase “ on the merits ” and judgment as so modified affirmed, without costs. Memorandum: We think the accident in question fell within the exclusions contained in subdivision 2 of paragraph V of the policy and that the language of subdivision 2 is free from ambiguity. Under these circumstances plaintiff’s complaint was properly dismissed but the dismissal should not have been upon the merits. We are convinced that the plaintiff cannot maintain his action on the policy as written. All concur, except Cunningham, J., who dissents and votes to reverse the judgment of the Monroe County Court and affirm the judgment of the Rochester City Court on the ground that the exclusion clause relied upon was ambiguous and indefinite and the intention of the parties should be determined upon the trial. (The judgment of the Monroe County Court reverses an order of the Rochester City Court, Civil Branch, denying defendant’s motion for judgment on the pleadings and for summary judgment, and grants the motion, in an action under a liability insurance policy. The order denies plaintiff’s motion for resettlement of the judgment.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.
