Opinion
Argued November 15, 1977
Decided December 19, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, EDWARD M. O'GORMAN, J.
Joseph J. Buderwitz, Jr., and Alfred E. Page, Jr., for appellant.
Thomas N. O'Hara for petitioner-respondent.
Order affirmed, with costs, on the memorandum at the Appellate Division ( 54 A.D.2d 958). In view of this disposition it is not necessary to consider the issue presented in Phoenix Ins. Co. v Guthiel ( 2 N.Y.2d 584).
Concur: Chief Judge BREITEL and Judges JASEN, WACHTLER, FUCHSBERG and COOKE. Judges GABRIELLI and JONES concur in the following memorandum: We concur in result only. Rather than requiring the courts below to strain their powers of imagination and to stretch familiar principles of law to reach an equitable result by finding that title has not passed (when in fact in any other setting it would be held that a sale had actually occurred and that title had passed), we would overrule the plurality opinion in Phoenix Ins. Co. v Guthiel ( 2 N.Y.2d 584). In our view where the insured is to be estopped from denying ownership and, as a result, is to be held liable, we would hold that the coverage under his policy should extend to such liability.