Opinion
November 30, 1970
Action No. 1 (brought in Kings County) is to recover damages for personal injuries sustained by plaintiff while a passenger in a private taxicab. Action No. 2 (brought in New York County) is a proceeding by the liability insurer of the vehicle to stay arbitration sought by said plaintiff under the uninsured motorist indorsement on the liability insurance policy. On July 15, 1970 this court granted a joint motion by both appellants to consolidate the three appeals herein determined. In Action No. 1 defendant appeals from an order of the Supreme Court, Kings County, dated November 13, 1969, which, after a nonjury trial on the issues of ownership and control of the vehicle, determined same against defendant. In Action No. 2 petitioner appeals from two orders of the Supreme Court, New York County, one dated January 26, 1970, denying the application and the other dated May 6, 1970, denying petitioner's motion to renew the application upon new facts. Orders affirmed, with one bill of $10 costs and disbursements jointly against appellants. Defendant in Action No. 1 operated a public livery and rented its vehicles, of which the vehicle in question was one, to drivers for $20 a day, the drivers keeping the excess moneys. This vehicle looked like a taxi. Plaintiff hailed the "taxi" and the driver stopped, permitted plaintiff to enter and agreed to drive him to his destination for a fee. At the conclusion of the trip, the taxi struck a fire hydrant, injuring plaintiff. The act of "picking up a fare" in the street was forbidden by rules and orders. In our opinion, Cohen v. Liberty Mut. Ins. Co. ( 35 A.D.2d 719), which involved excess coverage, is distinguishable. In Cohen, the vehicle was leased with the proscription that it was not to be used or operated by a person under the age of 25 years. The leasing agreement concerned a limited group — the owner-lessor, the lessee and the relatively few other qualified persons who might operate the vehicle. The use involved a private purpose — presumably the transportation of the lessee and his immediate coterie. At bar, however, the proscription in the leasing agreement rests upon a different footing. The vehicle was leased to a "gypsy" operator — not for a private purpose — but for the purpose of transporting the general public and for the mutual financial gain of the lessor and lessee. Under these circumstances, the interests and protection of the general public (plaintiff) became paramount and transcended any private agreement or instruction between the lessor and lessee of the taxi. When the lessor-owner here — for its mutual profit — permitted its vehicle to be used on the public highway as a taxi, with the reasonable possibility that it might be hailed by a member of the public, it ran the risk that its "gypsy" operator might deviate from his ex parte instructions. Whatever sanctions it chose to impose upon the operator, by discharge or otherwise, the lessor-owner could not evade liability to plaintiff using the vehicle as a means of public transportation. This same reasoning applies to the insurance carrier. In our opinion, any other conclusion would be repugnant to established concepts of public policy. Christ, P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.