Burke v. London Guarantee & Accident Co.

47 Misc. 171, 93 N.Y.S. 652

Opinion

Gaynor, J.:

The defendant agreed to <( indemnify ” the insured company “ against loss from common law or statutory liability for damages on account of bodily injuries ” caused by the. negligence of the insured, these being the words of the policy. The loss was not paid by the insured to the plaintiff, although she obtained a judgment against the insured for her damages, and hence the defendant never became liable to the insured on her account. The fact that the insured became insolvent; and could not pay the plaintiff’s judgment against it, gave her no claim, legal or equitable, against the insurer, this defendant. There was no privity between the plaintiff and the defendant through the insurance contract. It was a matter between insurer and insured only. The reasoning in Sanders v. Insurance Co. (72 N. H. 485), where the contra,ry was decided, does not- seem to rest on any definite principle. We are without any decision on the question in this state, but it has; been decided, adversely to the plaintiff’s contention in several states (Cushman v. Carbondale Fuel Co. 122 Iowa, 656; Frye v. Gas & Electric Co. 97 Me. 241; Moses v. Travellers Insurance Co. 63 N. J. Eq. 260; Kinnan v. Fidelity & Casualty Co. 107 Ill. App. 406; Connelly v. Bolster, 187 Mass. 266).

Judgment for the defendant, without coats.