This is an appeal by the defendant insurer from a judgment entered upon a jury verdict awarding $7,200 to the plaintiff who was a judgment creditor under section 167 of the Insurance Law. The plaintiff had previously obtained a jury verdict of $7,200 against the defendant’s insured in a negligence action. The defendant’s defense to this action was that its insured had failed to co-operate with it because he had given a certain statement to the plaintiff’s attorneys about two months before the negligence trial. In the statement in question he said: “I was going too fast to stop.” In his examination before trial, at which the insurer’s defense counsel was present, he stated: “ I seen him but it was too late.” In the statement he said that he was going 30 or 35 miles per hour when he hit plaintiff. In another statement, which he allegedly gave the insurer’s defense counsel during the trial of the negligence ease, it appears that he was going 5-10 miles per hour and almost stopped at the time of the collision. The insured testified in the present action that he had told the defense counsel that he was going 25 to 30 miles per hour. The credibility of the insured’s testimony as against that of the insurer’s defense counsel in regard to this last statement was for the jury and it resolved this issue against the insurer. There is no material variance between the statement given to the plaintiff’s attorneys and his examination before trial testimony and thus, there is no basis for finding as a matter of law that he had failed to co-operate. Further, it does not appear that the insured was ever told not to make any statement of facts to anyone other than his insurer. The statement which he made is not an admission or assumption of liability (cf. Wenig v. Glens Falls Ind.Co., 294 N. Y. 195). Judgment affirmed, with costs to respondent.
Gibson, P. J., Reynolds, Taylor and Aulisi, JJ., concur.