Opinion
December 24, 1931.
Dutcher Brothers, for the plaintiffs.
Lewis, Bown, Johnson Tobin [ Henry Kass, Jr., of counsel], for the defendant.
The statute requiring taxicab owners to file security was intended as a protection to the public. (Highway Law, § 282-b, subd. 1, added by Laws of 1922, chap. 612, as amd. by Laws of 1927, chap. 278.) In reading the policy in question this purpose must be kept in mind and the intention of the parties to the policy determined accordingly. The language of the statute is that the bond or policy of insurance shall be conditioned for the payment of any judgment recovered against the insured. The policy, itself, shows an intention to accomplish the purposes of the statute. The language in the first three subdivisions of the agreement is not as apt as it should be, but indicates that the parties intended that the company should protect the insured against the payment of any judgment, and the latter part of the agreement emphasizes this intention by making violations of certain provisions of the contract available only as between the parties. One of the provisions of the contract is that the statements made by the assured, if misrepresented, may be taken advantage of by the company, but shall not prejudice the rights of any third person. Under this provision, the defense set up by the company of misrepresentation as to the ownership and transfer of the car, is not available to the company as against the plaintiffs in this action. The company has issued a policy which is intended to protect third persons by requiring the payment of any judgment recovered against the assured, and no defense has been set up which is available to it.
Repealed by Laws of 1929, chap. 54; now Vehicle and Traffic Law, § 17, subd. 1. — [REP.
The plaintiffs are entitled to judgment, with costs.