Opinion
July, 1935.
Present — Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ.
Plaintiff, a guest passenger in Abramson's automobile, was injured as a result of Abramson's negligence. An execution on a judgment in plaintiff's favor was returned unsatisfied, after which this action was brought against the defendant, the insurance carrier. Defendant, by an affirmative defense, alleges that the policy was not in force because another passenger had paid the insured for transportation in said automobile, in violation of the terms of the insurance agreement. The court charged the jury that the burden of proof on this question was on the plaintiff, and an exception taken thereto by plaintiff is the sole ground of this appeal. The charge was correct. The weight of the evidence was in defendant's favor. Judgment and order unanimously affirmed, with costs. ( Lavine v. Indemnity Inq. Co., 260 N.Y. 399; Green v. Globe Rutgers Fire Insurance Co., 200 App. Div. 343.)