Sweers v. Malloy
| Decision Date | 11 July 1967 |
| Citation | 28 A.D.2d 955,281 N.Y.S.2d 693 |
| Parties | In the Matter of Elizabeth SWEERS, Judgment Creditor, Respondent, v. Sam E. MALLOY et al., Judgment Debtors, Motor Vehicle Accident Indemnification Corporation, Appellant. In the Matter of Lily Mae SWEERS, Judgment Creditor, Respondent, v. Sam E. MALLOY et al., Judgment Debtors, Motor Vehicle Accident Indemnification Corporation, Appellant. |
| Court | New York Supreme Court — Appellate Division |
James T. Viger, Troy (Robert J. Armstrong, Troy, of counsel), for petitioner-respondent.
Bouck & Holloway, Albany (Francis J. Holloway, Albany, of counsel), for appellants.
Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and STALEY, JJ.
Appeals by MVAIC from orders and judgments of the Supreme Court, Rensselaer County, entered on March 8, 1967 in proceedings pursuant to section 610 of the Insurance Law which direct the appellant to pay the sum of $10,781 to each of the petitioners.
On November 23, 1963, the petitioners, Elizabeth Sweers and Lily Mae Sweers, were crossing Fifth Avenue in the City of Troy when they were struck and injured by an automobile owned by Sam E. Malloy, and operated by Archie L. Wooten. Personal injury actions were commenced in Rensselaer County Supreme Court on behalf of both of the petitioners with service of the summons upon both the owner and operator of the vehicle.
The attorney for Royal Globe Insurance Company returned the summonses to George Barkley, the individual--whether agent or broker--through whom the policy was written, with a letter advising that the policy of insurance issued by Royal Indemnity Company (apparently a subsidiary of Royal Globe Insurance Companies) was terminated on November 18, 1963, and that there was no coverage for Mr. Malloy on November 23, 1963.
Notice was thereafter given to MVAIC which appeared and defended the actions on behalf of the defendants. The trial resulted in a jury verdict in favor of the plaintiffs, the petitioners herein.
Sam E. Malloy had obtained the automobile liability insurance in question through Barkley, as hereinbefore indicated, in the month of June, 1963, and was issued Policy No. RDR 15 22 02 by the Royal Indemnity Company under the assigned risk plan upon his entering into a premium finance agreement wherein Barkley was named as payee. By the terms of the agreement, Barkley undertook to pay the insurance premium on behalf of the assured, Malloy. The premium finance agreement was then assigned by Barkley to Prepaid Premiums, Inc. Malloy made the installment payments to Prepaid for July, August and September, but failed to pay the installment due October 25, 1963. A cancellation notice was sent to Malloy by Prepaid on November 4, 1963, terminating the policy as of November 18, 1963. Shortly before November 18, 1963 a notice of termination was sent by Prepaid to the Royal Indemnity Company.
The appellant contends that the attempted cancellation by Prepaid Premiums, Inc. was ineffectual because the financing agreement did not extend such authority to Prepaid. The financing agreement provided, that upon failure of the Assured to pay any installment due, ...
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