[DOWNLOAD] "Lumbermens Mutual Casualty Company v. ira Goldwasser" by Supreme Court of New York ~ eBook PDF Kindle ePub Free

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• Title: Lumbermens Mutual Casualty Company v. ira Goldwasser
• Author : Supreme Court of New York
• Release Date : January 05, 1959
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 71 KB

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[7 A.D.2d 849 Page 849] In an action by an insurer for a judgment declaring its right to disclaim liability under an automobile insurance policy,
the appeal is from so much of a judgment entered after trial as declares that appellant is obligated as insurer of respondent
Hyman Goldwassen, and from an order denying reconsideration of the memorandum decision and the corrected memorandum decision.
Judgment, insofar as appealed from, reversed on the law and the facts, with costs, and judgment directed to be entered declaring
that appellant is not obligated as insurer of said respondent under the policy. Findings of fact insofar as they may be inconsistent
herewith are reversed, and new findings will be made as indicated herein. An accident occurred while the insured's car was
being operated, in his absence, by his minor son, who was not licensed to drive. The policy contained a "co-operation" clause
which has been held to require "that there shall be a fair and frank disclosure of information reasonably demanded by the
insurer to enable it to determine whether there is a genuine defense" (Coleman v. New Amsterdam Cas. Co., 247 N. Y. 271, 276).
The insured, on a number of occasions, orally and in writing, stated to appellant that he had never given his son permission
to drive the car. Subsequent to making these statements, the insured testified, during an examination before trial, that his
son did have his permission to drive the car. The insured thus breached the condition of co-operation (Shafer v. Utica Mut.
Ins. Co., 248 App. Div. 279). Appellant's next step was the commencement of this action. Under these circumstances, appellant
did not waive the insured's breach of the policy (Draper v. Oswego County Fire Relief Assn., 190 N. Y. 12). There could have
been no waiver in the absence of full knowledge by appellant of the facts (Gutman v. United States Cas. Co., 241 App. Div.
752; S. & E. Motor Hire Corp. v. New York Ind. Co., 255 N. Y. 69). Appeal from order dismissed as academic. Wenzel, Acting
P.J., Murphy and Kleinfeld, JJ., concur. Beldock and Hallinan, JJ., concur in the dismissal of the appeal from the order but
dissent from the reversal of the judgment insofar as appealed from and the direction for the entry of judgment in favor of
appellant and vote to affirm the judgment, with the following memorandum: We agree with the majority that there was no waiver
or estoppel here. But we do not agree that there was lack of co-operation.

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