
    William J. Burns, Respondent, v. Travelers Insurance Company, Appellant.
    
      Insurance (liability) — action by insured against owner of colliding automobile to recover for damage to his car — counterclaim by owner of colliding car for his damages — defense by insurer of counterclaim resulting in judgment thereon — liability of insurer for costs.
    
    
      Burns v. Travelers Ins. Co., 220 App. Div. 786, reversed.
    (Argued October 13, 1927;
    decided October 28, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 12, 1927, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action is on a policy of liability insurance. Plaintiff was insured by defendant at the time of a collision between his automobile and that of another. He brought suit against the owner of the colliding car to recover his damages. A counterclaim was interposed in the suit which defendant in this action, on notice, defended. Judgment was rendered against plaintiff herein on the counterclaim. The defendant in this action has paid the amount of the verdict on the counterclaim but' has refused to pay the costs taxed upon entry of the judgment, which have been paid by the plaintiff herein. This action was brought to recover the amount of such costs.
    
      P. C. Dugan for appellant.
    
      Glenn A. Frank and Ernest P. Lyons for respondent.
   Judgment of Appellate Division and that of Trial Term reversed and complaint dismissed, with costs in all courts, upon the ground that under the circumstances of this case a liability for costs is not covered by the provisions of the policy.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  