157 Misc. 106 | N.Y. Sup. Ct. | 1935
Plaintiff’s motion for summary judgment (Rules Civ. Prac. rule 113) is denied; and defendant’s cross-motion for like relief is granted, and plaintiff’s complaint is dismissed upon the merits, but without costs either of the motion or of the action. My reasons are; The relevant facts are undisputed. Upon those facts, as a matter of law, when the defendant paid to the Myrtle Henion estate the total sum of $11,811.21, in full of a judgment for $11,118.04 for damages, interest and costs (recovered before the Stolove judgments) and a judgment for the costs of affirmance, $101.90, each with interest, said defendant discharged in full its obligations under its policy arising by reason of the relevant accident. The policy did not obligate the defendant either by the express terms thereof or by necessary or any implication therefrom, nor when read in connection' with section 109 of the Insurance Law, to distribute the
Language sufficient to provide for ratable distribution was extant (See Bleimeyer v. Public Service Mutual Casualty Ins. Corp. 250 N. Y. 264); but it was not used in this policy. A number of cases in a learned brief which reflects the diligence, zeal and ability of plaintiff’s counsel, in my opinion, constitutes no authority for his contention as to the necessity for ratable distribution in the instant case. I mention specifically one of such cases, namely, Bleimeyer v. Public Service Mutual Casualty Ins. Corf, (supra). Therein the highest court construed a bond given under section 282-b of the Highway Law (See present Vehicle and Traffic Law, § 17, subd. 1), which provided that proprietors of motor vehicles for hire should file a bond conditioned for the payment of any judgment recovered for death or injury to person or property caused through the operation of such vehicles, the amount thereof to be apportioned ratably in payment of judgments recovered on claims arising out of the same transaction. The court there held that the proper form of remedy in such a case where several persons had been killed or injured as the result of a single casualty and the wrongdoer is insolvent, is an equitable action by a judgment creditor suing on his own behalf and in behalf of any others similarly situated, to administer the
Settle order on notice.