Opinion
January 8, 1941.
Present — Hill, P.J., Crapser, Bliss, Schenck and Foster, JJ.
This is an appeal from a judgment in favor of the plaintiff and against the defendant in an action on a liability insurance policy under section 109 Ins. of the Insurance Law. The plaintiff sustained personal injuries as the result of the negligent operation of a motor vehicle owned by one Meyer Arfa who was an assured of the defendant, Maryland Casualty Company. The plaintiff commenced a suit against Meyer Arfa in the Supreme Court of Sullivan county to recover damages for the injuries sustained. The Maryland Casualty Company did not defend and the plaintiff recovered a judgment by default against Meyer Arfa and has commenced this action upon that judgment after the return of an execution unsatisfied against the defendant Arfa. The defendant maintains that the judgment sued upon was not properly taken and was not a valid judgment because there was no summons and complaint and proof of service and default in the action of the plaintiff against Arfa. This defect was supplied upon this trial and a valid judgment existed upon which suit could be brought. The question of whether the plaintiff was an employee of Arfa at the time of the accident was fully litigated upon contradictory evidence and the jury has found against the defendant and in favor of the plaintiff. A bare question of fact is involved and the judgment and order appealed from should be affirmed, with costs. Judgment and order unanimously affirmed, with costs.
See Insurance Law of 1939 (Laws of 1939, chap. 882), §§ 143, 167. — [REP.