Gerka v. Fidelity

Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. The provisions in the policy invoked by defendant exempted it from liability in the event that the injuries claimed to be indemnified against were inflicted while the horse-drawn vehicle was driven by a person under the age of sixteen years. The provision is unambiguous and the fact is undisputed that the accident occurred while the horse-drawn vehicle was actually driven by Pegano when he was of the age of fifteen years and nine months. This is so, although his act constituted negligence so far as the insured *687was concerned. The policy of insurance is not as broad as the measure of duty that was owing by the insured to the plaintiff herein, and this is so whether the act deemed to be a breach of duty be that of Pegano, the infant, or be deemed to be the negligence of that servant, fused with the negligence of Selesniek. (Grant v. Knepper, 245 N. Y. 158, 163.) The conduct of the defendant herein involved neither waiver nor estoppel. (Gordon v. Mass. Bonding & Ins. Co., 229 N. Y. 424.) In view of this disposition of the case, the appeal from so much of the order dated March 27, 1928, as denies defendant’s motion to set aside the verdict and for a new trial is dismissed. Lazansky, P. J., Rich, Young, Seeger and Carswell, JJ., concur.