
    New York Consolidated Railroad Company, Respondent, v. Massachusetts Bonding and Insurance Company, Appellant.
    
      Insurance — action to recover on policy of liability insurance — alleged failure to properly conduct defense of action.
    
    
      N. Y, Consolidated B. B. Co. v. Mass. B. & Ins. Co., 193 App. Div. 438, affirmed.
    (Argued March 3, 1922;
    decided March 21, 1922.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 16, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. This action was brought to recover the amount of a judgment which plaintiff had been compelled to pay to one Barnsley for injuries received by him in attempting to enter an elevated railroad train operated by plaintiff. The injuries were caused by falling into an open hole in the railroad platform, made by a contractor, Burnham, who was doing repair and alteration work upon the platform pursuant to a contract with the New York Municipal Railway Corporation. The complaint contained two causes of action. One upon a policy of insurance written by the defendant company indemnifying the plaintiff to the extent of $10,000 against liability for accidents such as was the basis of the Barnsley action. The other for alleged violation by the defendant of its duty in conducting the defense, which it had assumed for plaintiff pursuant to the terms of the policy.
    
      Emory R. Buckner, Maxwell Steinhardt and Robert P. Patterson for appellant.
    
      D. A. Marsh, H. L. Warner and George D. Yeomans for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Pound, McLaughlin, Crane and Andrews, JJ.' Dissenting: CarDOZO, J. _  