201 A.D. 117 | N.Y. App. Div. | 1922
Lead Opinion
I report for affirmance. Defendant conceded, stipulated and proved plaintiff’s case. The initial circumstances are, briefly, as follows: On the 29th day of July, 1920, and for several months
All concur, except Hinman, J., dissenting, with an opinion, in which Van Kirk, J., concurs.
Dissenting Opinion
I take a little different view of this case. It is a matter of enforcement of a contract. We are dealing with, an exception from the risk insured against. If the facts do not come within the exception the defendant is liable for the judgment, notwithstanding the bankruptcy of the insured. (Insurance Law, § 109, added by Laws of 1917, chap. 524, as amd. by Laws of 1918, chap. 182, and Laws of 1920, chap. 563.) If the facts do come within the exception there was no coverage and the bankruptcy of the insured .has nothing to do with the case.
A question as to whether the burden was upon the plaintiff to negative the exception, or whether it was upon the defendant to prove that the facts came within that exception, has been raised. It is not necessary to decide that question, because taking the testimony most favorable to the plaintiff, the situation which existed at the time of the accident came within the exception from the risk insured against. The fair interpretation of the provision of the policy in question is that the policy did not cover any accident which was proximately caused by the automobile being driven by a person under the age of sixteen years. If the facts show that that
I favor a reversal and a dismissal of the complaint.
Van Kirk, J., concurs.
Judgment and order affirmed, with costs.