Majority
p. 633Hugo Schaefer, Respondent, v. Fidelity and Casualty Company of New York, Appellant. Supreme Court, Appellate Term, Second Department, April 9, 1953.
John S. Thorp, Jr., for appellant.
Robert L. Horn for respondent.
This is an action against a liability insurance company brought pursuant to paragraph (b) of subdivision 1 of section 167 of the Insurance Law, following recovery by plaintiff of a judgment for personal injury and property damage against defendant’s insured which has been unsatisfied because of disclaimed liability where defendant interposed the single defense of cancellation of the insured’s policy prior to the acci
p. 634
dent. At the trial, defendant produced a witness amply qualified to render competent by her testimony, as records and writings made in the regular course of defendant’s business, a copy of the cancellation notice claimed by defendant to have been mailed to the insured before the accident and a “ mail list ” which purported to prove the mailing of said notice. The policy provided that the mailing of the cancellation notice by defendant concluded all rights of the insured, under the terms of the policy. The trial court excluded some of the testimony of defendant’s witness and both of the exhibits on the sole ground that such testimony and such exhibits were not binding upon the plaintiff. The court was in error because section 374-a of the Civil Practice Act provides specifically for receiving hearsay testimony and the exhibits in question as proof of an act or an occurrence. The exclusions by the court removed from his consideration important evidence in deciding the case, in fact, the only proof offered by defendant. The incorrect ruling was prejudicial and requires a new trial.
The judgment should be unanimously reversed upon the law and a new trial ordered, with $30 costs to defendant to abide the event.
Walsh, Cuff and Ughetta, JJ., concur.
Judgment reversed, etc.