
    David Melvin et al., Doing Business as Sam Melvin & Sons, Respondents, v. Public Service Mutual Insurance Company, Appellant.
    Supreme Court, Appellate Term, Second Department,
    December 23, 1958.
    
      E. Edan Spencer for appellant.
    
      Spar, Schlem <& Burroughs (Martin A. Burroughs of counsel), for respondents.
   Per Curiam.

The unexcused delay of at least 35 days in giving notice to defendant after plaintiffs had become fully aware that the claim being asserted against them was within the coverage of defendant’s policy was, under the circumstances presented herein, a breach of condition as a matter of law, and fatal to the plaintiffs’ cause of action (Deso v. London & Lancashire Ind. Co. of America, 3 N Y 2d 127; Vanderbilt v. Indemnity Ins. Co. of North America, 265 App. Div. 495).

The order dated March 13, 1958 granting plaintiffs’ motion for summary judgment should be unanimously reversed upon the law and facts, with $10 costs and taxable disbursements to defendant, motion denied and summary judgment granted in favor of defendant dismissing the complaint. Appeals from orders dated June 26, 1957 and February 4, 1958, dismissed. These orders were superseded by the order of March 13,1958.

Concur — Pette, Di Giovanna and Brown, JJ.

Order reversed, etc.  