
    Ellis Coat Co., Inc., Respondent, v. United States Fire Insurance Company, Appellant.
    Supreme Court, Appellate Term, First Department,
    January 6, 1939.
    
      
      Paul D. Compton [Wayne D. Bird of counsel!, for the appellant.
    
      George I. Janow [.Herman Young of counsel!, for the respondent.
   Per Curiam.

Under section 109 of the Insurance Law when the loss is uncollectible by reason of the insolvency or bankruptcy of the insured, it is collectible against the insurance company, as the policy under the provisions of the statute then becomes a contract of liability as well as of indemnity. (Brustein v. New Amsterdam Casualty Co., 255 N. Y. 137; Skenandoa Rayon Corp. v. Halifax Fire Ins. Co., 245 App. Div. 279; affd., 272 N. Y. 457.)

When the bankrupt insured is liable for damage caused by his automobile his insurance company is also liable under its policy for the personal injury or property damage. In the present case it has not been established in fact that the damage was caused by the carrier’s automobile truck. The complaint and affidavits here show that the merchandise while being transported on defendant’s truck was together with the truck stolen by unknown persons. That peril although covered by the policy does not come within the provisions of the statute.

Judgment and order granting plaintiff’s motion for summary judgment reversed, with costs, and defendant’s motion for summary judgment granted.

Appeal from other orders dismissed.

All concur. Present — Hammer, Frankenthaler and Noonan, JJ.  