Hinkle v. Globe & Rutgers Fire Insurance

246 A.D. 737

Opinion

Plaintiffs’ property was damaged through the negligent operation of a tugboat whose owner was insured by defendant against property damage in the operation of the tug. The policy contained no provision of liability on the part of defendant in the event that the tugboat owner failed because of insolvency to pay a judgment obtained because of negligence in the operation of the tugboat. Section 109 of the Insurance Law requires that no insurance policy against loss or damage to property caused by any vehicle drawn, propelled or operated by any motive power, shall be issued unless it shall contain a provision that the insurance company will be liable to the person whose property has been damaged if because of insolvency the assured cannot pay. It was held by the trial court, on a motion for judgment on the pleadings and for summary judgment in favor of plaintiffs, that the words “ vehicle drawn, propelled or operated by any motive power ” included the tugboat operated by the assured. Orders and judgment affirmed, with ten dollars costs and disbursements. Lazansky, P. J., Carswell, Tompkins and Davis, JJ., concur; Johnston, J., dissents with the following memorandum; I dissent and vote to reverse both orders and the judgment, to grant defendant’s motion and to deny plaintiffs’ motion. I do not believe the word “ vehicle ” as used in section 109 of the Insurance Law includes a vessel or tugboat, nor do I believe that Hansen v. Continental Ins. Co. (262 N. Y. 136), relied upon by Lewis, J., is applicable.