Davis v. Hartford Accident & Indemnity Co.

Order unanimously modified in accordance with memorandum and as modified affirmed, without costs of this appeal to either party. Memorandum: Special Term correctly held that the thawing of pipes in a house off the premises described in the garage liability policy was not an operation “necessary or incidental” to the garage business being operated by plaintiff. It was error, however, to dismiss the complaint in this action for a declaratory judgment merely because plaintiff was not entitled to the declaration he sought. (Lanza v. Wagner, 11 N Y 2d 317, 334.) The order should be modified by declaring that defendant is not obligated to take over the defense of the action brought against plaintiff nor to pay any judgment which may be rendered against him in that action. (Appeal from order of Chau [605] tauqua Special Term dismissing the complaint in an action on a garage liability policy.) Present — Williams, P. J., Goldman, Henry, Del Vecehio and Marsh, JJ. [48 Misc 2d 135.]