128 Misc. 456 | N.Y. App. Term. | 1926
The plaintiff in a previous action against one Dunn recovered a judgment for personal injuries arising out of a taxicab accident. Notice of appeal was filed but no undertaking was furnished with no stay of execution resulting. This action was thereafter brought by the plaintiff against this defendant, which was Dunn’s insurer, under a policy issued and filed pursuant to section 282-b of the Highway . Law of the State (added by Laws of 1922, chap. 612, as amd. by Laws of 1925, chap. 315). Upon motion for summary judgment a default was suffered by the defendant who
It is argued by the defendant that by reason of the pendency of the appeal in the action against the principal, there is such a lack of final determination of the main litigation, as to impose any liability upon it under the insurance policy. While the case of Devlin v. N. Y. Mutual Casualty Taxicab Ins. Assn. (213 App. Div. 152) is decisive in estopping the defendant from making this collateral attack upon the judgment against it suffered by default, nevertheless in the interest of a proper interpretation of a public statute, the point raised by the defendant would seem to merit elucidation.
Considering the obligation under the policy, apart from the language of the statute, the insurer was hable upon a “ final determination of the litigation after trial of the issue.” The expression is synonymous with final judgment. The latter, as is shown in Dean v. Marschall (90 Hun, 335, 338) is susceptible of two significations: “ One, which in a strict legal sense is its true meaning, viz., a determination of the rights of the parties after a trial, whether such is the subject of review or not; and the other, its colloquial use or signification, which makes it synonymous with decisive, or a judgment that cannot be appealed from and which is perfeqtly conclusive upon the matter adjudicated.”
The express language of the clause in the policy would sedm to indicate that it was not intended to fix the insurer’s liability upon the determination of the litigation beyond all possibilities of appeal. If there were any doubt in the matter, it is disposed of by the mandatory language of section 282-b of the statute in question which makes the indemnitor hable “ for the payment of any judgment recovered ” against the principal. A reasonable construction of the statute obviously requires thatosuch a judgment must
Order affirmed, with ten dollars costs.
O’Malley, J., concurs in result. Present — Bijur, O’Malley and Levy, JJ.