Travelers Indemnity Co. v. Burg

253 A.D. 43, 1 N.Y.S.2d 172, 1937 N.Y. App. Div. LEXIS 5106

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1937
• Status: Published

Opinions

Crapser, J.

The plaintiff issued to Harry Burg, of Hunter, Greene county, N. Y., the proprietor of a steam laundry, its automobile policy covering a three-quarter-ton truck to be used as a commercial vehicle in his business and covering against bodily injury and property damage liability.

The plaintiff agreed to defend the insured, Harry Burg, in any suits brought for damages under the coverage of the policy even though such suits were groundless, false and fraudulent.

On the evening of August 28, 1937, Fannie Belle Young, Dorothy Young and Alexander Schoor were riding in said automobile truck belonging to Harry Burg, which at the time was being operated by one George Wlody, upon a State highway, when the same became involved in an accident resulting in injuries to the said Fannie Belle Young, Dorothy Young and Alexander Schoor.

Thereafter negligence actions were brought by the administrator of Dorothy Young, who died as the result of the injuries she sustained, by the guardian ad litem of Fannie Belle Young for such infant, and separately for himself individually for loss of services, etc., and by Alexander Schoor against Harry Burg and George Wlody. The defendants served answers to said actions and the same were noticed for trial.

The plaintiff herein then began an action against the owner of the truck, the driver and the passengers and their representatives for a declaratory judgment to determine whether George Wlody was operating the truck with the knowledge, consent and permission of the owner, Harry Burg, and whether said automobile truck was being operated at the time of the accident for a purpose other than that specified in the policy, and asking that the prosecution of the negligence actions be restrained until the hearing and determination of this action. The defendants made a cross-motion to dismiss the plaintiff’s complaint.

In the negligence actions the answer of Harry Burg, the owner of the truck, alleges that the truck was being driven by George Wlody at the time of the accident without his permission, consent or authority.

The plaintiffs in the negligence actions are entitled to have a jury determine whether the truck was being operated in the business of the owner or with his knowledge, permission and consent at the time of the accident. If the plaintiff in this action was permitted the relief asked for they would be denied this right. In case the jury should determine in the negligence actions that the truck was not being operated with the knowledge, permission and consent of the owner, then their verdict would be in favor of the defendant Burg, the owner, and there would be no necessity for a declaratory judgment.

Though the Supreme Court has jurisdiction in a proper case to enjoin the prosecution of a prior action or proceeding, the power may not be arbitrarily exercised. Only in cases where the necessity of equitable interference to prevent a failure of justice is clearly established should such relief be granted. (Colson v. Pelgram, 259 N. Y. 370, 375, 376.)

The plaintiff in this action shows no special circumstances justifying the granting of the injunction restraining the prosecution of the negligence actions. All of the questions that the plaintiff seeks to have liquidated in this action can be determined in the negligence actions.

The order appealed from denying the plaintiff’s motion and granting defendants’ cross-motion for a dismissal of the complaint should be affirmed, with costs.

Hill, P. J., Rhodes and McNamee, JJ., concur; Bliss, J., concurs with a separate opinion, in which Hill, P. J., Rhodes and McNamee, JJ., concur.