Judgment *667reversed on the law, with costs, and complaint dismissed on the merits, with costs. In our opinion there was no waiver by the defendant of the provisions of the policy of insurance and of the breach thereof by the assured. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Carswell, Seudder and Davis, JJ., concur; Young and Hagarty, JJ., dissent and vote to affirm on the ground that under no circumstances was the defendant liable to the assured, but as it defended the action the company, therefore, waived its exemption from liability. Settle order on notice.