Defendant appeals from a judgment in favor of the plaintiff entered on the verdict of a jury. The action is under section 167 Ins. of the Insurance Law against the insurer upon a policy of liability insurance to recover the amount of a judgment against the insured. Judgment affirmed, with costs. No opinion.
Nolan, P.J., Johnston and Sneed, JJ., concur; Adel, J., with whom MacCrate, J., concurs, dissents and votes to reverse the judgment and grant a new trial, with the following memorandum:
It was error to hold, as matter of law, that the language of the policy was not ambiguous, and to exclude the evidence offered by the defendant that would have aided the jury in construing the policy. ( Birnbaum v. Jamestown Mut. Ins. Co., 298 N.Y. 305.)