Schields v. London & Lancashire Indemnity Co. of America

251 A.D. 775, 295 N.Y.S. 434, 1937 N.Y. App. Div. LEXIS 7456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1937
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, entered upon the verdict of a jury in Delaware county, and from an order denying defendant’s motion for a new trial. Plaintiff herein recovered judgment for negligence against the Stamford Press, Inc., the owner of an automobile, for injuries caused by said automobile. Execution under said judgment having been returned unsatisfied this action was brought by said plaintiff against the defendant herein which had issued its policy insuring said Stamford Press, Inc., against liability. As a defense the defendant herein asserts that the insured failed to co-operate in the defense of the negligence action brought against insured by the plaintiff, as required by the terms of said policy, in that the president of the insured reported and represented to the insurer that the accident was caused by the plaintiff turning her car in front of the car belonging to the insured, and said president of said insured so testified upon the trial of plaintiff against the insured; that she produced in rebuttal, however, witnesses who testified to the effect that the said president of said insured had made a statement to the effect that he did not know how the accident happened because he was asleep or drowsing at the time. The court below submitted to the jury the question as to whether the insured had co-operated with the insurer. The sole question raised by the appellant is that the verdict of the jury is against the weight of the credible evidence. Judgment and order unanimously affirmed, with costs. Present — Hill, P. J., Rhodes, McNamee, Bliss and Heffeman, JJ.