Nationwide Mut. Ins. Co. v. Liberty Mut. Ins. Co.

43 N.Y.2d 810 (1977)

Nationwide Mutual Insurance Company, Respondent, v. Liberty Mutual Insurance Company et al., Respondents, and Allstate Insurance Company, Appellant.

Court of Appeals of the State of New York.

Argued November 15, 1977.

Decided December 19, 1977.

Asher Marcus and Peter James Johnson for appellant.

William F. Larkin for Nationwide Mutual Insurance Company, respondent.

Dale M. Thuilley for Florence Waterson and another, respondents.

Concur: Chief Judge BREITEL and Judges JASEN, WACHTLER, FUCHSBERG, COOKE, GABRIELLI and JONES.

Order affirmed, with costs, on the opinion by Mr. Justice OLIVER C. SUTTON at Supreme Court, New York County. In view of the affirmed finding that no sale was effectuated, it is not necessary to consider the issue presented in Phoenix Ins. Co. v Guthiel (2 N.Y.2d 584).

Judges GABRIELLI and JONES concur in the following memorandum: We concur in result only. Rather than requiring the courts below to strain their powers of imagination and to stretch familiar principles of law to reach an equitable result by finding that title has not passed (when in fact in any other setting it would be held that a sale had actually occurred and that title had passed), we would over-rule the plurality opinion in Phoenix Ins. Co. v Guthiel (2 N.Y.2d 584). In our view where the insured is to be estopped from denying ownership and, as a result, is to be held liable, *812 we would hold that the coverage under his policy should extend to such liability.