Fadden v. Cambridge Mut. Fire Ins. Co.
| Decision Date | 31 May 1967 |
| Citation | 280 N.Y.S.2d 209,27 A.D.2d 487 |
| Parties | Joseph R. FADDEN, Respondent, v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Grey & Snyder, Saratoga Springs (Theodore H. Grey, Saratoga Springs, of counsel), for defendant-appellant.
Maynard, O'Connor & Smith, Albany (Michael E. Catalinotto, Albany, of counsel), for plaintiff-respondent.
Before HERLIHY, J.P., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.
OPINION FOR AFFIRMANCE
This is an appeal from an order and judgment granted to plaintiff at Special Term of Supreme Court, upon his motion for summary judgment.
Lewis Burgess was injured on June 30, 1962 by a power saw operated by Joseph Fadden, Jr., the minor son of the plaintiff herein. Burgess sued both the plaintiff and his son recovering a verdict against them. This verdict was affirmed by us (Burgess v. Fadden, 22 A.D.2d 713, 253 N.Y.S.2d 66) and entirely paid by the present plaintiff who thereafter moved for a judgment for contribution which was granted. This judgment remained unpaid and plaintiff instituted suit against the defendant here on its Home Owner's policy issued to plaintiff and his wife. This policy contained a provision for comprehensive liability coverage and listed as 'Insured' were '(a) the named Insured, (b) if residents of his household, his spouse, the relatives of either and any other person under the age of 21 in the care of an Insured * * *.' Under applicable exclusions, coverage was not to apply '(a) to any business pursuits of an Insured, other than activities therein which are ordinarily incident to non-business pursuits; or to the rendering of any professional service or the omission thereof * * *.' Defendant by its answer raised the defense of the above cited exclusion clause and moved for summary judgment. Plaintiff cross-moved for summary judgment and his motion was granted.
It is well settled that a judgment creditor stands in the shoes of the assured when seeking to enforce a policy insuring the judgment debtor against liability and can recover against the insurer only if the assured could recover under the terms of the policy (Wenig v. Glens Falls Indemnity Co., 294 N.Y. 195, 61 N.E.2d 442). The policy issued by the defendant insurer must be viewed as separate policies issued to plaintiff and his wife--and issued to the son. (Greaves v. Public Service Mut. Ins. Co., 5 N.Y.2d 120, 181 N.Y.S.2d 489, 155 N.E.2d 390; Morgan v. Greater N.Y. Taxpayers Mut. Ins. Ass'n, 305 N.Y. 243, 112 N.E.2d 273; Wenig v. Glens Falls Indemnity Co., supra.) These cases clearly indicate that 'an additional although...
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