Opinion
December 1, 1941.
Action under section 109 (now § 167) of the Insurance Law to recover on an automobile liability insurance policy issued by defendant. Order granting plaintiff's motion for reargument of defendant's motion for summary judgment and on reargument adhering to the court's original decision granting the motion, and judgment dismissing the complaint, reversed on the law and the facts, with ten dollars costs and disbursements, and motion for summary judgment denied, with ten dollars costs. The appeal from the original order granting defendant's motion for summary judgment is dismissed, without costs. While plaintiff moved for reargument, his motion in effect was for a rehearing on additional papers. In our opinion the stipulation attached to and forming part of plaintiff's answering affidavits raises an issue of fact as to whether the automobile that struck plaintiff was leased or hired by the assured at the time of the accident and thus without the coverage of the policy. Issues of fact are also raised as to the allegations contained in the other defenses pleaded. Lazansky, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.