Stonborough v. Preferred Accident Ins. Co. of N.Y.

54 N.E.2d 342, 292 N.Y. 154, 1944 N.Y. LEXIS 1386

• Court: New York Court of Appeals
• Decided: March 2, 1944
• Status: Published

Opinion

Per Curiam:

A motor vehicle liability policy issued by tbe defendant to Thomas Stonborough undertook to pay on bis behalf — “ all sums which tbe insured shall become obligated to pay by reason of tbe liability imposed upon him by law for damages, * ⅞ # sustained by any person or persons, caused by accident and arising out of tbe ownership, maintenance or use of tbe (insured’s) automobile.” On tbe date when tbe plaintiff was injured in tbe automobile covered by that policy she was not married to tbe insured. When later an action was instituted by her against tbe insured, and when judgment in that action in her favor was entered against tbe insured, she bad become tbe insured’s wife. In tbe present action by tbe same plaintiff against tbe defendant insurer to recover tbe amount of such judgment entered by tbe plaintiff against tbe insured (her husband), payment is resisted upon tbe ground that tbe insurer incurred no liability because at tbe time judgment was obtained tbe plaintiff was tbe insured’s wife and tbe policy which is tbe basis of tbe suit did not contain tbe express provision required by section 167, subdivision 3, of tbe Insurance Law covering liability for injuries sustained by tbe insured’s spouse.

By tbe terms of tbe policy tbe liability of tbe insurer became fixed on tbe happening of tbe accident, at which time tbe plaintiff and tbe insured were not married. We have not overlooked tbe ruling to tbe contrary in Fuchs v. London & Lancashire Indemnity Co., 258 App. Div. 603, which was not reviewed by this court.

The judgment should be affirmed, with costs.

Ch. J., Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ. concur.

Judgment affirmed.