43 N.Y.2d 810 | NY | 1977
OPINION OF THE COURT
Order affirmed, with costs, on the opinion by Mr. Justice Oliver C. Sutton at Supreme Court, New York County. In view of the affirmed finding that no sale was effectuated, it is not necessary to consider the issue presented in Phoenix Ins. Co. v Guthiel (2 NY2d 584).
Concur: Chief Judge Breitel and Judges Jasen, Wachtler, Fuchsberg and Cooke. Judges Gabrielli and Jones concur in the following memorandum: We concur in result only. Rather than requiring the courts below to strain their powers of imagination and to stretch familiar principles of law to reach an equitable result by finding that title has not passed (when in fact in any other setting it would be held that a sale had actually occurred and that title had passed), we would overrule the plurality opinion in Phoenix Ins. Co. v Guthiel (2 NY2d 584). In our view where the insured is to be estopped from denying ownership and, as a result, is to be held liable,
