Opinion
Argued January 3, 1944
Decided March 2, 1944
Appeal from the Supreme Court, Appellate Division, First Department, SHIENTAG, J.
Irving I. Goldsmith and Jos. L. Roesch for appellant. Philip Hoffer and James A. Doherty for respondent.
A motor vehicle liability policy issued by the defendant to Thomas Stonborough undertook to pay on his behalf — "all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, * * * sustained by any person or persons, caused by accident and arising out of the ownership, maintenance or use of the (insured's) automobile." On the date when the plaintiff was injured in the automobile covered by that policy she was not married to the insured. When later an action was instituted by her against the insured, and when judgment in that action in her favor was entered against the insured, she had become the insured's wife. In the present action by the same plaintiff against the defendant insurer to recover the amount of such judgment entered by the plaintiff against the insured (her husband), payment is resisted upon the ground that the insurer incurred no liability because at the time judgment was obtained the plaintiff was the insured's wife and the policy which is the basis of the suit did not contain the express provision required by section 167, subdivision 3, of the Insurance Law covering liability for injuries sustained by the insured's spouse.
By the terms of the policy the liability of the insurer became fixed on the happening of the accident, at which time the plaintiff and the insured were not married. We have not overlooked the ruling to the contrary in Fuchs v. London Lancashire Indemnity Co., 258 App. Div. 603, which was not reviewed by this court.
The judgment should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ. concur.
Judgment affirmed.