244 A.D. 582 | N.Y. App. Div. | 1935
The plaintiff issued a policy of workmen’s com-» pensation insurance to cover the employees of the Mack Engineer
Section 109 of the Insurance Law, pursuant to which the present action is brought, provides that upon the return of an execution unsatisfied, the injured person, or, in the case of death, his or her personal representative, may maintain with the same force and effect an action against the company issuing the policy to the person
“ This statute, being in derogation of the common law, will be strictly construed. (Adams-Flanigan Co. v. Di Donato, 180 App. Div. 342; affd., 228 N. Y. 542.) * * *
“ It would be a forced construction to decide that section 109 of the Insurance Law applies to a right to maintain an action authorized by a subsequent enactment. It gives a right of action to an ‘ injured person ’ only.”
This court in the case of Commercial Casualty Ins. Co. v. New Amsterdam Casualty Ins. Co. (239 App. Div. 914) unanimously affirmed an order of the court below granting defendant’s motion for judgment on the pleadings and thereafter denied leave to appeal to the Court of Appeals (240 App. Div. 811). In that case the complaint alleged that the defendant issued its automobile liability policy to one Roth. The plaintiff had issued a similar policy to one
Martin, P. J., Townley, Glennon and Untermyer, JJ., concur.
Order so far as appealed from reversed, with twenty dollars costs and disbursements, the motion of plaintiff for examination before trial denied, and the cross-motion of defendant for judgment dismissing the complaint granted.