
    IRVING WRENN, PLAINTIFF, v. JOSEPH BELLAMY AND TALBERT LEWIS, INDIVIDUALLY, JOINTLY AND IN THE ALTERNATIVE, DEFENDANTS. IRVING WRENN, PLAINTIFF, v. AMERICAN EMPLOYERS INSURANCE COMPANY, DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Argued April 4, 1966
    Decided April 7, 1966.
    
      Before Judges Goldmann, Foley and Collester.
    
      Mr. Richard J. S. Barlow, Jr. argued the cause for appellant (Messrs. Lenox, Giordano & Lenox, attorneys).
    Respondents filed no brief.
   Per Curiam.

The Unsatisfied Judgment Eund appeals from (1) an order to pay entered in the ease of Wrenn v. Bellamy and Lewis, and (2) an order denying its motion to intervene and to vacate a summary judgment entered in Wrenn v. American Employers Insurance Company. We stajred the order to pay pending determination of the consolidated appeals.

Wrenn, a passenger in an automobile owned by Lewis, brought a negligence action against Lewis and Bellamy, the driver of the ear. At the very start of the case both sides expressly agreed that the matter would be tried on the issue of Bellamy’s agency; his permission to drive, either express or implied, was definitely eliminated as an issue. In fact, the pretrial order was amended to accomplish that end. The jury evidently concluded that Bellamy had not been acting as Lewis’ agent, and consequently returned a verdict against Bellamy only.

Bellamy being uninsured, Wrenn then sued Lewis’ insurance company, American Employers Insurance Company. The company moved for summary judgment, which was granted. The Eund was not a party to that proceeding.

Wrenn next moved for an order requiring the Eund to pay $10,000 on the verdict he had obtained against Bellamy. See N. J. S. A. 39:6-69 to 71. In a summary proceeding held pursuant to N. J. S. A. 39:6-70 the Eund claimed that there was a valid and existing policy (held by Lewis) covering the operation of the vehicle by Bellamy. This contention was evidently based upon the fact that there remained open and unlitigated the question of Bellamy’s having had permission to operate the Lewis car, in which event Bellamy would be an additional insured under the omnibus clause of the insurance policy. The trial judge granted Wrenn’s motion, holding that the issue of coverage had been determined in his action against the insurance company, to which action, as noted, the Eund had not been a party.

The Eund appealed from the order to pay and moved to consolidate with that appeal the ease against American Employers and to vacate the summary judgment entered therein. We directed the Eund to make an application to intervene and vacate the summary judgment in Wrenn v. American Employers Insurance Company and stayed the Eund’s appeal on the order to pay. The Eund made such an application, and it was denied. The Eund then appealed from that decision, and we consolidated the appeal with that from the order to pay.

It was error for the trial judge to refuse intervention by the Eund in the American Employers case. We have pointed out that the original negligence action was based on agency only. Permission was not in issue, and has never been litigated. The Eund is entitled to have a determination of that question, since it goes directly to its obligation to pay.

Accordingly, we reverse and remand, with direction that the Eund be permitted to intervene in the American Employers case for the purpose of litigating the issue of permission. The order to pay will be vacated, without prejudice. No costs.  