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Leitner v. Citizens Casualty Co.

Decided: April 24, 1947.

HARRIET LEITNER, PLAINTIFF-RESPONDENT,
v.
CITIZENS CASUALTY COMPANY OF NEW YORK, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, John C. Grimshaw (David E. Feldman, of counsel).

For the respondent, Saul G. Schulter (John J. Francis, of counsel).

Heher

The opinion of the court was delivered by

HEHER, J. Plaintiff recovered judgment against one Gumino for damages for personal injuries sustained as the result of the negligent operation of a Plymouth sedan automobile while in use as a taxicab in the Town of Harrison on December 15th, 1939; and, the judgment remaining unsatisfied,

she brought this action upon a policy of indemnity insurance issued by the defendant insurer to Gumino for the term of one year commencing on the prior August 1st, covering also a DeSoto sedan devoted to the like use, pursuant to R.S. 48:16-1, et seq., commonly known as the "Taxicab Act," and R.S. 39:6-1, et seq., known as the "Financial Responsibility Act." There was a specific endorsement of the coverage directed by section 48:16-3, supra, and the policy itself was filed with the municipal clerk in accordance with that provision; and a certificate of its issuance was filed with the Commissioner of Motor Vehicles, pursuant to his demand for proof of financial responsibility under section 39:6-1, supra.

The single question now mooted is whether there had been an effective cancellation of the policy's coverage of the Plymouth automobile at the time when the mishap befell plaintiff. The facts were stipulated; and Judge Ackerson, sitting without a jury, found that the purported prior cancellation of the policy coverage provided under the Taxicab Act was ineffectual, and accordingly rendered judgment for plaintiff for the amount due on her judgment against Gumino. We concur in that conclusion.

The stipulation of facts reveals the mailing by the defendant insurer to the municipal clerk on September 1st, 1939, of an "endorsement," for attachment to the policy, of an agreement by the assured Gumino that the Plymouth car "is hereby eliminated and no longer covered under" the policy, effective on the previous day, but nothing to show the receipt of the instrument by the clerk. It is also stipulated that the clerk has "no recollection of ever having received" the paper; that none of his office staff at the time has "any recollection of having received or seen" the writing; and that the local license to operate the vehicle as a taxicab had not been revoked when plaintiff sustained the injuries. Judge Ackerson found as a fact that the mailed notice of cancellation was not received by the municipal clerk, and that functionary did not have actual notice of the cancellation; and the finding is conclusive here. Indeed, there is no complaint on that score.

Thus, the essential question is whether mere constructive notice of the cancellation of a policy issued under section 48:16-1, supra, is effective as to the public. Actual notice is not requisite under the terms of the policy in suit; constructive notice suffices. It is provided that "no cancellation" of the policy "shall take effect until the expiration of five days after written notice of such proposed notice of cancellation has been forwarded to the clerk of the municipality" in which the operation of the insured vehicle is permitted. But in our view this contractual provision for constructive notice is extra the statute, and therefore without efficacy as regards the public as the third party beneficiaries.

The Taxicab Act makes no provision for the cancellation of a policy of indemnity insurance issued thereunder; and we deem it to be implicit in the statutory policy that such insurance, serving as it does the common interest, shall remain effectual as to the public, barring the expiration of the prescribed term, until actual notice of its cancellation shall be received by the municipality, and a reasonable time afforded for protective action. The insurance is provided for the protection of the public, and the right to operate the insured taxicab is conditioned upon the continued subsistence of such coverage. This policy is outstanding. Local consent to the operation of a vehicle of that class is a condition prerequisite. Section 48:16-2. Such consent shall not become effective until the owner of the vehicle shall have filed the prescribed insurance policy with the municipal clerk, and "shall continue effective and operation thereunder shall be permitted only so long as the insurance policy shall remain in force to the full and collectible amount" of $5,000. Section 48:16-3. Upon the filing of the insurance policy, the clerk of the municipality is under a duty to issue in duplicate a certificate of compliance, reciting the name of the insurer, the number and date of expiration of the policy, a ...


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