
    National Grange Mutual Insurance Company of Keene, New Hampshire, Appellant, v. Arthur Cervantes et al., Respondents.
   Appeal from an order of a Special Term of the Supreme Court, Albany County. A declaratory judgment is sought by plaintiff insurance company against its assured; the driver of the assured’s vehicle; and the plaintiff in a negligence action against the assured and the driver determining that an exclusionary clause in the policy has saved the plaintiff from liability. The court at Special Term has denied plaintiff’s motion for summary judgment. The clause in issue provides there is no liability under the policy while the motor vehicle is used “as a public or livery conveyance ”. The complaint alleges that the insured vehicle at the time of accident was being used transporting persons for hire ”; that the deceased person whose administrator, a defendant here, has brought action was a passenger for hire ” in the vehicle; and that The policy ■' * '• excluded the operation ” of the vehicle “ for hire and the provisions of the same for coverage do not apply”. The administrator’s answer denies all these allegations; the answer of the insured and his driver admits the vehicle on the occasion of accident was transporting persons for hire and that decedent was a passenger for hire; but denies the allegation that the exclusion clause applied. This form of pleading, therefore, sufficiently raises the issue whether, if on this single occasion the vehicle was transporting persons for hire and the decedent was a passenger for hire, the exclusionary clause applied. A single use of a vehicle for hire has been held not to make out use as “ a public of livery conveyance (Elliott v. Behner, 150 Kan. 876; Stanley v. American Motorists Ins. Co., 195 Md. 180; 30 A. L. R. 2d 273.) At any rate this issue is sufficiently raised to require denial of summary judgment. The answer of the administrator is even broader in its denials. Order denying plaintiff’s motion for summary judgment unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Gibson, Reynolds and Taylor, JJ.  