Downey v. Merchants Mut Ins Co.
| Decision Date | 20 February 1969 |
| Citation | 246 N.E.2d 757,298 N.Y.S.2d 998,23 N.Y.2d 989 |
| Parties | , 246 N.E.2d 757 Mary DOWNEY, Appellant, v. MERCHANTS MUTUAL INSURANCE COMPANY, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Fourth Department, 30 A.D.2d 171, 291 N.Y.S.2d 726.
Gleason & O'Connor, Buffalo, for defendant-respondent.
Plaintiff brought action for judgment declaring that defendant insurer was legally obligated to defend her and was liable to pay any judgment which third persons might recover in automobile collision action which third persons had brought against plaintiff and city which owned automobile driven by plaintiff.
It appeared that plaintiff's husband was employed by the city and had the use of the city's automobile on city's business. The husband permitted the plaintiff to drive the automobile, and while she was doing so she was involved in the collision. The defendant was the insurer of the city's automobile and also of the family automobile owned by plaintiff's husband. The defendant disclaimed liability with respect to the collision under either policy of insurance, on ground that plaintiff was operating the city's automobile without permission.
The Supreme Court, Special Term, Erie County, Thomas J. O'Donnell, J., entered an order granting a motion to dismiss the complaint.
The Appellate Division entered an order June 24, 1968 which reversed the order of the Special Term and declared that defendant was required to defend the negligence action and, if it be determined in the negligence action that plaintiff was driving with permission of the City, that defendant would be liable to pay any recovery had against plaintiff, to extent of policy coverage. The Appellate Division held that issue of permission to drive the city's automobile should be tried in the negligence action and not in the declaratory judgment action, but that action for declaratory judgment should not be summarily dismissed.
The plaintiff appealed to the Court of Appeals, contending that the policy issued to her husband provided coverage to her while driving a nonowned automobile, with or without consent of husband, and that no issue of fact decisive of contractual liability of defendant would be determined in negligence action.
Order affirmed, with costs.
All concur.
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