Opinion
June, 1935.
Present — Sears, P.J., Taylor, Edgcomb, Crosby and Lewis, JJ. [ 156 Misc. 607.]
Order affirmed, with ten dollars costs and disbursements.
All concur, except Sears, P.J., and Taylor, J., who dissent and vote for reversal on the law and granting the motion in the following memorandum:
Defendant admits in its answer that in the action against the owner of the automobile and his son the defendant through its attorneys conducted the defense. Defendant is, therefore, estopped in this action by the judgment in the former action from claiming that Harmon V. Strong was not driving "legally" under section 109 Ins. of the Insurance Law. Harmon V. Strong had a driver's license when the collision occurred and was not "under the age fixed by law," the limitation specified in the insurance policy. If the words quoted are ambiguous as to whether "the age fixed by law" refers to eighteen years of age or sixteen years of age under section 20 Veh. Traf. of the Vehicle and Traffic Law, the doubt should be resolved against the insurance company. (The order denies a motion to strike out the answer in a judgment creditor action.)