2 Misc. 2d 94 | N.Y. Sup. Ct. | 1956
This is an action for a declaratory judgment brought by the insurance carrier against the owner and operator of the insured motor vehicle and against his wife Alice Javian, who, as a passenger therein, was injured when said automobile was involved in an accident on the Merritt Parkway in Trumbull, Connecticut. Both defendants were served with process in this action, but only Alice Javian appeared and answered; her husband defaulted.
At the time this action was commenced, there was an action pending in the Superior Court, County of Fairfield, State of
It is indeed true that as of the present time the claim with respect to which the plaintiff seeks a declaration of its rights under its policy has neither been reduced to judgment nor is the subject of a pending action. Nevertheless, it is evident from the pleadings, the record and the proofs before the court that the defendants still contend that the policy in question covers Alice Javian’s claim for damages; that the plaintiff disavowed coverage and refused to defend the Connecticut action when called upon to do so by the insured; that the latter consented to revive that action after it had been discontinued, and an action against him in this State by his wife to recover damages for the personal injuries she sustained in the Connecticut accident has not yet been tolled by the applicable Statute of Limitations. All of the foregoing makes it clear that the defendants intend to look to the plaintiff to perform its obligations under the policy with respect to that claim. That presents a controversy sufficient to warrant this court entertaining jurisdiction for the purpose of rendering a declaratory judgment. (Cf. Post v. Metropolitan Gas. Ins. Co., 227 App. Div. 156,158, affd. 254 N. Y. 541.)
At the time that the policy was issued and at the present time the defendants were and still are residents of the County of Queens, City and State of New York. It covered a vehicle registered in New York and the application for the policy was made in this State. It was countersigned in New York, issued through a broker with offices in the County of New York and there delivered to the insured. Such policy is accordingly governed by the Insurance Law of the State of New York in which State the plaintiff is licensed to do business.
It is indeed true that the foregoing is supported by such recent decisions as Williamson v. Massachusetts Bonding Co. (142 Conn. 573) and New Amsterdam Cas. Co. v. Stecker (208 Misc. 858). However, in a later decision in the Supreme Court, Kings County (General Acc. Fire & Life Assur. Corp. v. Ganser, 2 Misc 2d 18), Mr. Justice McDonald, after reviewing the last-cited cases, nevertheless held, under circumstances similar to those present here, that a policy such as the one in question affords no coverage in any action based upon the liability of one spouse against the other. He there relied upon Lamb v. Liberty Mut. Ins. Co. (263 App. Div. 859), which affirmed the decision below of Mr. Justice Steuer of the Supreme Court, New York County (N. Y. L. J., Feb. 27,1941, p. 894, col. 2). In that case, Judge Steuer held: “ When the broad purpose of the Legislature is taken into consideration * * *, it will be seen that what was intended was to wipe out the bar to suits between spouses for tort, but not to make insurers liable where the tort was the result of an automobile accident (Fuchs v. London S Lancashire Indemnity Co. of America, 258 App. Div., 603). * * * As to the second point, concededly the statute does not apply to an accident in Connecticut. But this suit is brought not upon an accident but upon a contract made in New York and performable here. The statute applies to it.”
Settle judgment on notice.