Opinion
November 6, 1961
In an action for a declaratory judgment that, under a policy of liability insurance issued by plaintiff to defendant, the defendant had no insurance coverage for a described accident because plaintiff, prior to the date of the accident, had cancelled the policy for nonpayment of premium, the plaintiff appeals from an order of the Supreme Court, Suffolk County, dated March 29, 1961, and entered in Nassau County on April 4, 1961, which granted defendant's motion, under rule 107 of the Rules of Civil Practice, to dismiss the complaint on the ground "that another action is pending between the same parties for the same cause." It appears that an action to recover the damages sustained in the accident had been instituted against the defendant by the injured party, and that defendant had impleaded plaintiff as a party in that action. In his third-party complaint in that action defendant alleged: (1) that plaintiff had refused to defend the action brought against him (defendant); and (2) that defendant sought indemnification from plaintiff for any damages he (defendant) might sustain. In its answer to such third-party complaint the plaintiff, by way of defense, had pleaded its nonliability because of its cancellation of the insurance policy prior to the date of the accident. Order affirmed, with $10 costs and disbursements ( Storer v. Ripley, 283 App. Div. 973). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.