
    William Welden, Respondent, v. Frankfort General Insurance Company, Appellant.
    
      Contract — liability insurance — personal injuries received by being struck by automobile — abatement of action through death of driver — when oral agreement by agent of liability insurer to settle for injury cannot be enforced.
    
    
      Welden v. Frankfort General Insurance Co., 184 App. Div. 795, reversed.
    (Argued October 20, 1920;
    decided November 16, 1920.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 26,' 1918, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting' a new trial. Plaintiff received personal injuries through being struck by an automobile. The driver of the automobile held a policy of liability insurance issued by the defendant. Shortly after the accident a representative of the attorneys for the defendant called upon plaintiff and agreed to “ settle with you any time you are ready.” No terms of settlement were named and no amount to be paid was agreed upon. Thereafter the owner of the automobile was killed and the cause of action against him abated. The insurance company declined to conclude a settlement and this action was brought to enforce the agreement. At the close of the trial the complaint was dismissed.
    
      John N. Carlisle and Charles B. Sullivan for appellant. J. Harris Loucks for respondent.
   Order of Appellate Division reversed and judgment of Trial Term affirmed on the dissenting opinion of H. T. Kellogg, J., below, with costs in this court and in Appellate Division.

Concur: His cock, Ch. J., Chase, Hogan, Cardozo, McLaughlin, Crane and Andrews, JJ.  