
    Investors Insurance Company of America, Appellant, v Eastway Construction Corp. et al., Respondents.
   — Judgment of the Supreme Court, New York County (Seymour Schwartz, J.), entered on January 24, 1985, which, following a nonjury trial, awarded plaintiff the sum of $4,833.37 plus interest, costs and disbursements, is modified, on the law, and plaintiff awarded the full amount of the premiums plus interest, and otherwise affirmed, with costs and disbursements. Settle order.

In an order entered on May 31, 1984, this court unanimously affirmed an order of the Supreme Court, New York County (Alvin Klein, J.), entered on November 1, 1983, which granted defendants’ motion to renew, and upon renewal, granted plaintiff’s motion for summary judgment on the issue of liability and set the matter down for an assessment of damages (101 AD2d 1034). In its order, Special Term had expressly held that "testimony about an oral agreement will not be used to vary the terms of the written contract of insurance.” Notwithstanding this mandate, the trial court, in endeavoring to determine the amount of the premiums owed to plaintiff, permitted defendants to offer testimony to explain what the court deemed to be an ambiguous term of the insurance contract in question. Since the only purpose of the assessment was to ascertain the amount of the premiums due, the computation of which is provided in the policy, the court was unwarranted in hearing evidence regarding matters which were decided on the prior appeal. Consequently, plaintiff should have been awarded the full amount of the premiums. Concur — Ross, Carro, Fein and Milonas, JJ.

Kupferman J. P., dissents and would affirm for the reasons stated by Schwartz, J., at Trial Term.

Settle order.  