Gluck v. London & Lancashire Indem. Co. of America
| Decision Date | 04 April 1957 |
| Parties | , 142 N.E.2d 423 Helen GLUCK as Administratrix of the Estate of Carl Gluck, Deceased, Respondent, v. LONDON & LANCASHIRE INDEMNITY COMPANY OF AMERICA, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 2 A.D.2d 751, 153 N.Y.S.2d 518.
Administratrix brought action against automobile liability insurer to enforce judgment against insured.
The Supreme Court, Trial Term, Kings County, A. David Benjamin, J., 134 N.Y.S.2d 889, directed a verdict for the insurer and, 207 Misc. 471, 138 N.Y.S.2d 70, denied motion of administratrix for a new trial, and the administratrix appealed.
The Appellate Division, 2 A.D.2d 751, 153 N.Y.S.2d 518, reversed the judgment and order, granted a new trial, and held that evidence as to whether timely notice had been served on insurer presented an issue for the jury, requiring a new trial in the interests of justice. Wenzel, Acting P. J., and Ughetta, J., dissented.
The insurer appealed to the Court of Appeals, contending that notice of accident was not given by insured within a reasonable time after the accident, and that there was no question as to notice, which could be submitted to the jury, and that there was no sufficient notice given by or on behalf of the injured person, and that the policy was a voluntary one at the time of the accident, and that there was no waiver of the conditions of the policy by the insurer.
Evans, Orr, Gourlay & Pacelli, New York City ( Edward Pacelli, New York City, and Joseph Kane, New York City, of counsel), for defendant-appellant.
Friedman & Friedman, New York City (Nathaniel Rothstein, New York City, of counsel), for plaintiff-respondent.
Order affirmed and judgment absolute ordered against defendant on the stipulation, with costs in all courts.
All concur except VAN VOORHIS, J., who dissents and votes to reverse and to dismiss the complaint upon the ground that recovery is precluded by failure to give written notice of loss as required by the terms of the insurance policy.
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