Opinion
May 22, 1929.
Appeal from the City Court of the city of New York, New York county.
Maslon Shapiro [ Samuel Shapiro of counsel], for the appellant.
H.C. Houlihan [ Arthur H. Gagnon of counsel], for the respondent.
The policy issued by the defendant was clearly within section 109 Ins. of the Insurance Law (added by Laws of 1917, chap. 524, as amd. by Laws of 1924, chap. 639). Under said section all such policies are deemed to include the provision required by the section and the absence of any provision required thereby is no defense. Section 109 further provides that in case execution against the assured is returned unsatisfied because of the insolvency or bankruptcy of the assured an action may be maintained by the injured person against the insurance company. The claim, therefore, that no levy was made under the execution is immaterial. No point is made that the complaint does not allege the insolvency or bankruptcy of the assured. The defendant established the fact that he has other unsatisfied judgments against him. An examination of the opposing affidavit shows that no triable issue existed.
Order reversed, with ten dollars costs and disbursements, motion granted, and judgment directed for plaintiff as demanded in the complaint, with costs.
All concur. Present — LYDON, CALLAHAN and FRANKENTHALER, JJ.