241 A.D. 399 | N.Y. App. Div. | 1934
The action was brought to recover on defendant’s policy of insurance whereby the defendant agreed to indemnify the assured, Capitol Stages, Inc., for damages on account of injuries to or destruction of property resulting from or caused by the operation, maintenance or use of motor vehicles owned and operated by the assured. The question presented by this appeal is as to whether or not the defendant is liable for the loss of the plaintiff’s property under the terms of said policy. Under subdivision 3 of the policy, with relation to limitation of liability, the policy provides: “ The liability of the Company on any one judgment is limited to * * * Five Hundred Dollars ($500) for damage to or destruction of property and on all judgments recovered upon claims arising out of the same transaction or transactions connected with the same subject of action,” etc.
The plaintiff was a passenger on a bus owned and operated by the assured, Capitol Stages, Inc. The plaintiff .bought and paid for a ticket for transportation on said bus on or about May 31, 1933: When the plaintiff boarded the bus the driver thereof required him to give to the driver his baggage, which the plaintiff did. Said baggage was placed on top of the bus by the driver, along with the baggage of other passengers. While on the way to New York city the bus stopped at several stations to permit passengers to board or leave the bus, and at each of said stations the bus driver took care of the passengers’ effects. No passenger was permitted to handle his own baggage. When the plaintiff reached his destination in New York city he requested the driver to deliver his baggage to him. Only a part thereof was returned to plaintiff. The remainder was missing. Upon the refusal of the bus company to return all of plaintiff’s baggage to him the plaintiff brought action in the Municipal Court of the City of New York and recovered a judgment for $366.50 as the value of the missing baggage. Thereafter an execution against the property of the assured was issued and the same was returned wholly unsatisfied by the marshal,
The doctrine is too well established to require the citation of many authorities that where there is doubt or ambiguity in the construction of an insurance contract prepared by the insurer, such doubt must be resolved against the insurance company. (Lavine v. Indemnity Ins. Co. of North America, 142 Misc. 422; Kocak v. Metropolitan Life Ins. Co., 144 id. 422.) Under section 109 of the Insurance Law an action may be begun against an insurance carrier on a judgment recovered for damages to property where the execution has been returned unsatisfied against the assured by virtue of its insolvency or bankruptcy. The defendant contends that the plaintiff has failed to show that the execution in the case at bar was returned because of insolvency of the assured. However, the execution against the assured was returned unsatisfied by a duly authorized marshal of the city of New York, and such return is prima facie evidence of the insolvency of the assured and in the absence of facts to the contrary it must be assumed that at the time said execution was returned unsatisfied the assured was insolvent. (Halsey v. Winant, 233 App. Div. 103.)
The judgment and order appealed from should be affirmed, with costs to plaintiff, respondent, against defendant, appellant.
Finch, P. J., Townley, Glennon and Untermyer, JJ., concur.
Judgment and order affirmed, with costs.