132 Misc. 134 | N.Y. App. Term. | 1928
This action is brought under section 109 of the Insurance Law (added by Laws of 1917, chap. 524, as amd. by Laws of 1924, chap. 639) which permits a person injured through fault of an automobile owner who is insured and against whom such person has recovered an unsatisfied judgment to maintain an action against the insurance company “ under the terms of the policy ” for the amount of the judgment theretofore recovered against the assured. In the instant case plaintiff was a passenger in the car of one Ohrbach, who held a policy issued by the defendant. Ohrbach gave the defendant a written detailed statement of the occurrence which exonerated himself from liability and placed the blame on the driver of another car. The defense of the action brought by plaintiff against Ohrbach was undertaken by the defendant insurance company. On the trial Ohrbach testified to a different state of facts with a resulting judgment against him. Execution having been returned unsatisfied, plaintiff brought this action. Both sides concede that if defendant had an adequate defense “ under the terms of the policy ” against Ohrbach, it would be available against plaintiff. (Roth v. National Automobile Mutual Casualty Co., 202 App. Div. 667, 669; Schoenfeld v. New Jersey Fidelity & Plate Glass Ins. Co., 203 id. 796; Coleman v. New Amsterdam Casualty Co., 126 Misc. 380; affd., 220 App. Div. 748; affd., 247 N. Y. 271.) Defendant has interposed the defense of failure on the part of Ohrbach to “ at all times render to the company all co-operation and ass'stance within his power,” as required of him by the policy.
Upon the trial of the present action defendant put in evidence the unfavorable testimony of Ohrbach on the previous trial and then offered in evidence his written statement to it, above referred to, which demonstrated his non-liability for the accident. This was objected to by plaintiff’s counsel on the ground that it was “immaterial, irrelevant and incompetent, and not within the issues of this case.” When the objection was sustained defendant’s counsel asked on what ground, to which the court replied: “ On the ground it is not binding on this plaintiff.” It is evident that plaintiff’s counsel and the learned trial judge were under the impression that the statement was offered in some way as an admission against interest by Ohrbach. It was manifestly offered to
Respondent urges finally that “ where pursuant to the terms of a liability policy the insurer defends an action with full knowledge of assured’s alleged breach of policy conditions, such conduct amounts to a waiver of the alleged breach.” (Citing Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Miller v. Union Indemnity Co., 209 App. Div. 455, and other similar cases.) The principle has no application to the instant case. There is nothing upon the present record to show that this defendant, when it undertook and carried on the defense of Ohrbach in plaintiff’s action against him and had in
Moreover, the present record does not show any authority on the part of Ohrbach’s counsel to conclude defendant in that respect. While he was evidently retained by the insurance company to defend Ohrbach, presumably his duty and his authority were confined to the conduct of the trial.
We express no opinion on the weight, and still less on the conclusiveness, of any of the evidence as bearing upon the issues presented. Since there is to be a new trial, and in view of the exclusion of certain evidence offered by plaintiff during the course of the last trial, we deem it appropriate to point out that when Ohrbach’s statement to the defendant has been put in evidence it is open to the plaintiff to introduce testimony tending to explain it, or the circumstances under which it was given, and generally to disprove its weight as establishing “ lack of co-operation ” on the part of the assured. Similarly it is competent for plaintiff to prove knowledge on the part of the defendant of the nature or substance of Ohrbach’s testimony before it undertook his defense as against the previous suit of the present plaintiff. Apparently plaintiff made an effort to prove that defendant was aware that on a previous suit brought by the mother of Ohrbach he had testified to the same effect, but all such evidence was excluded. Testimony of this character or any other which tends to bring home to defendant knowledge of the breach of condition in the policy of Ohrbach before it undertook his defense as against the present plaintiff is material as bearing on plaintiff’s claim of waiver of the breach.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, Bijur, Delehantt and Crain, JJ.