Opinion
June 12, 1944.
Defendant issued a policy covering plaintiff's automobile and insuring against loss or damage, except by collision, but including theft. The automobile, while being operated without plaintiff's permission, was damaged and plaintiff recovered a judgment compensating him for the loss. On reargument ( 266 App. Div. 860), order of the Appellate Term [ 180 Misc. 1013], reversing a judgment of the Municipal Court of the City of New York, Borough of Queens, in plaintiff's favor, and dismissing the complaint, reversed on the law and the facts, the judgment entered thereon vacated, and the judgment of the Municipal Court in favor of plaintiff reinstated, with costs in this court and in the Appellate Term, on the authority of Block v. Standard Ins. Co. of N.Y. ( 292 N.Y. 270). Pursuant to section 587 of the Civil Practice Act, defendant is directed to make restitution of the costs collected by it under the original decision of this court made on June 14, 1943 [ 266 App. Div. 860]. Close, P.J., Carswell, Johnston, Adel and Lewis, JJ., concur.