Opinion
October, 1933.
Judgment reversed on the law and a new trial granted, costs to appellant to abide the event. In our opinion, the respondent-insurer is estopped from disclaiming liability under its policy of insurance by reason of its conduct after the judgments of the United States District Court, in taking and prosecuting appeals to the Circuit Court of Appeals through its own attorneys, without the consent or knowledge of the insured. Young, Scudder and Tompkins, JJ., concur; Lazansky, P.J., and Davis, J., vote to reverse the judgment to permit the plaintiff to recover the sum of $400, the costs of the appeal to the Circuit Court of Appeals, with interest thereon — if it appears on a new trial that the plaintiff did not authorize said appeal — being of the opinion that said sum is the limit of plaintiff's recovery; and that if defendant will stipulate for entry of judgment against it for the amount aforesaid, then plaintiff shall have judgment for that amount, with costs.