Quality Motors of Rochester, Inc. v. (American) Lumbermen's Mutual Casualty Co. ( 1939 )

Order reversed on the law, with ten dollars costs and disbursements, and plaintiff’s motion for judgment granted, with ten dollars costs, damages to be assessed by a jury at the Trial Term. Memorandum: There is no substantial difference between the exclusion clause in the policy in suit and the exclusion clause in the policy under consideration in Smith v. American Automobile Fire Insurance Co. (274 N. Y. 626). As the facts and circumstances in the two cases are similar, that case is controlling in this action. (See, also, Dibble v. Travelers Ins. Co., 163 Misc. 540.) All concur. (The order denies plaintiff’s motion for summary judgment in an action under a liability insurance policy.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.