Hartford Accident & Indemnity Co. v. Smith — 43 N.Y.2d 808

Majority

p. 808

Hartford Accident and Indemnity Company, Respondent, v Caroline Smith, Individually and as Mother and Natural Guardian of Enid Smith, an Infant, and Another, Respondent. Caroline Smith, Individually and as Mother and Natural Guardian of Enid Smith, an Infant, and Another, Respondent, v Barbara J. Lusk, Appellant, et al., Defendant.

Argued November 15, 1977;

decided December 19, 1977

p. 809

APPEARANCES OF COUNSEL

Joseph J. Buderwitz, Jr., and Alfred E. Page, Jr., for appellant.

Thomas N. O’Hara for petitioner-respondent.

OPINION OF THE COURT

Order affirmed, with costs, on the memorandum at the Appellate Division ( 54 AD2d 958 ). In view of this disposition it is not necessary to consider the issue presented in Phoenix Ins. Co. v Guthiel ( 2 NY2d 584 ).

Concur: Chief Judge Breitel and Judges Jasen, Wachtler, Fuchsberg and Cooke. Judges Gabrielli and Jones concur in the following memorandum: We concur in result only. Rather than requiring the courts below to strain their powers of imagination and to stretch familiar principles of law to reach an equitable result by finding that title has not passed (when in fact in any other setting it would be held that a sale had actually occurred and that title had passed), we would overrule the plurality opinion in Phoenix Ins. Co. v Guthiel ( 2 NY2d 584 ). In our view where the insured is to be estopped from denying ownership and, as a result, is to be held liable, we would hold that the coverage under his policy should extend to such liability.

Cases cited

Phoenix Insurance v. Guthiel 2 NY2d 584 N.Y. 1957-04-11 p. 809