National Grange Mutual Liability Co. v. Steere , 36 N.Y.S.2d 114 ( 1942 )

Plaintiff has appealed from an order of the Albany County Special Term of Supreme Court granting the motion of Elizabeth McDonald, one of the defendants, for a dismissal of its complaint. About December 3, 1939, plaintiff issued and delivered to the defendant Steere an automobile policy of insurance covering Steere’s car. In that policy it was provided that upon the occurrence of an accident the assured should give written notice thereof to plaintiff as soon as reasonably possible. About September 1, 1940, Steere’s automobile was involved in an accident and as a result the defendant McDonald, riding as a passenger in another car, was injured. Steere gave no notice of the accident to plaintiff until July 29, 1941, a period of ten months and twenty-eight days after the happening thereof. On September 13, 1941, defendant McDonald commenced an action in the Supreme Court of Albany County against the defendant Steere to recover damages. Plaintiff accepted the summons and complaint served on Steere and aEeges that it intends to furnish him a defense, reserving its rights under the policy, and on the further condition that it should not be obligated to pay any judgment which might be rendered against Steere in such action. Plaintiff then brought this action for a declaratory judgment, in which it asks that it be decided that it be relieved of any obligation to indemnify the defendant Steere or to pay defendant McDonald any damages, and also to have it determined that defendant McDonald has no right of action against this plaintiff. Defendant McDonald made a cross-motion to dismiss plaintiff’s complaint. A declaratory judgment is not proper in this action and the Special Term properly declined to entertain it. (Travelers Indemnity Co. v. Burg, 253 App. Div. 43.) Order unanimously affirmed, with twenty-five dollars costs and disbursements. Present — Hill, P. J., Crapser, Heffernan, Sehenek and Foster, JJ.