Sercer v. Employers’ Liability Assurance Corp. 251 A.D. 873

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The defense was predicated upon the claim of a breach by the assured of the term of a policy of casualty insurance which required the assured when requested by the defendant to aid in effecting settlements, in securing evidence and attendance of witnesses, in defending suits and in prosecuting appeals, and to render the defendant all co-operation and assistance in the assured’s power. As bearing upon the question of the assured’s co-operation, the court erroneously submitted to the jury the question of the defendant’s good faith in its conduct of the litigation on behalf of the assured in the previous action brought by the plaintiff against the assured. While the conduct of the defendant’s representative in the previous litigation may have influenced the action of the assured and was relevant and pertinent to the question of the assured’s co-operation, still we deem *874It error to have permitted the jury to pass upon the quality of the acts of the defendant in respect to its good or bad faith. Further, the plaintiff’s counsel persistently injected into the trial proof of negotiations between the plaintiff’s representative and the representative of the defendant looking to a settlement of the plaintiff’s case. This was prejudicial and was so recognized by the counsel for the plaintiff at the time the questions were asked and the evidence introduced, the counsel after an objection to one of his questions expressly saying, “ I am trying to make it prejudicial, it should be prejudicial.” The testimony was wholly incompetent. All concur, except Cunningham, J., who dissents and votes for affirmance. (The judgment is for plaintiff in an action under a liability insurance policy. The order denies a motion for a new trial on the minutes.) Present — Sears, P. J., Edgcomb, Lewis, Cunningham and Taylor, JJ.