156 N.Y.S. 419 | N.Y. App. Div. | 1915
The plaintiff would recover from the defendant, insuring against loss, the expense of successfully completing the defense of an action brought against him, by a servant for personal injuries. The defendant as insurer had initiated and entered upon the defense but, after issue joined, abandoned the case and asserted that it was not liable for the accident under the policy. The defendant’s argument is that, as the event showed, the employer was not legally liable to the servant, therefore, it was not liable, inasmuch as the policy is to indemnify the assured “ against loss from the liability imposed by law upon the assured.” The policy is intended to indemnify; it also contains a stipulation to defend. Under' authoritative decisions the insurer is not required to defend, but is liable to pay to the assured the sums that the litigation with the injured person shall legally impose. Although there was forcible judicial opinion to the contrary, the above rule cannot be disturbed in this court. (Cornell v. Travelers’ Ins. Co., 175 N. Y. 239; Lawrence v. General Accident Assurance Corp., Limited, 124 App. Div. 545; affd., 192 N. Y. 568.) But there is an extension of the rule to the effect that if the insurer undertake the defense he cannot assert that the claim for damages is
The order of the Appellate Term should be reversed and the judgment of the Municipal Court affirmed, with costs.
Jenics, P. J., Stapleton, Mills and Rich, JJ., concurred.
Order of the Appellate Term reversed and judgment of the Municipal Court affirmed, with costs.