
    Samuel Bazar, Respondent, v. Great American Indemnity Company, Appellant.
   Defendant appeals from a judgment of the Supreme Court entered in Rensselaer County on June 18, 1951, in favor of plaintiff, after a trial without a jury. Plaintiff has had judgment in a previous action against Margaret Davis and Alfred Davis, her husband, for personal injuries sustained by plaintiff when he was struck by an automobile owned by said Margaret Davis and driven by said Alfred Davis, on May 29, 1944. At that time the automobile owned by Mrs. Davis was covered by an automobile liability insurance policy issued by defendant. The judgment against the Davises was discharged as to them by their proceedings in bankruptcy, and the plaintiff brings this action on the judgment against the defendant insurer under section 167 of the Insurance Law. Defendant asserts failure to give written notice of the accident and failure to co-operate in accordance with the terms of the policy as affirmative defenses. Alfred Davis did not tell his wife, the named insured in said policy, of the accident until February 9, 1946, and she had no knowledge thereof prior thereto. On that date, immediately upon learning of the accident, Mrs. Davis gave oral notice to one Fagan, coneededly a general agent of the defendant. Subsequently, an action was brought against the Davises by the plaintiff for personal injuries, and was defended by the insurance company under a nonwaiver agreement. The trial court, before whom this action was tried without a jury, has found that there was no failure to co-operate and that there was no violation by Margaret Davis of the terms of the policy with reference to notice, and has rendered judgment in favor of the plaintiff. (Insurance Law, § 167, subd. 1, par. [d]; Wenig v. Glens Falls Ind. Co., 294 N. Y. 195; Maryland Casualty Co. v. Lopopolo, 97 F. 2d 554.) The record sustains such findings. Judgment affirmed, with costs. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part. [See 281 App. Div. 775.]  