(dissenting). The plaintiff was, on August 20, 1927, engaged as a common carrier of passengers for hire. In such business it operated a number of automobile buses. On that day a collision occurred between two of the motor vehicles so operated by the plaintiff and sixty-one persons have made claims for injuries which resulted. Four actions for the full jurisdictional amount were commenced against the plaintiff in different districts of the Municipal Court of the City of New York, which actions are now pending and untried. Two actions commenced in other districts of the Municipal Court have been reduced to judgments *335in the aggregate sum of $600 and fully paid pursuant to executions issued thereon against the plaintiff herein. Some twelve actions have been commenced in the City Court of the City of New York, and seven In the Supreme Court. In addition claims have been made but no action started by other passengers.
It is maintained by the plaintiff that it is forthwith entitled to recover $600, the amount of the Municipal Court judgments referred to, from the defendant. The claim is predicated upon a certain policy of insurance. By such the defendant agreed to indemnify the plaintiff against loss from the liability imposed by law upon it for damages on account of death or bodily injuries resulting from or caused by the operation, maintenance or use of the motor vehicles in question.
The policy provided: “ The liability of the Insurers for loss resulting from any one judgment is limited * * * on all judgments recovered upon claims arising out of the same transaction or transactions connected with the same subject of action to Five Thousand Dollars ($5,000.00) for bodily injuries or death, * * * to be apportioned ratably among the judgment creditors according to the amount of their respective judgments, * *
Whether the plaintiff is now entitled to recover depends chiefly, if not entirely, upon the construction to be given to the language of the quoted provision. We may take it for granted that if there are conflicting provisions in the agreement they should be construed in favor of the insured and against the insurer.
The policy under the facts stipulated was clearly obtained by the plaintiff and given by the defendant pursuant to section 282-b of the Highway Law (added by Laws of 1922, chap. 612, as amd. by Laws of 1927, chap. 278). This statute, except as therein specified, requires all parties engaged in the business of carrying passengers for hire to carry a bond or policy such as is . here involved and authorizes the use of the language above quoted to be incorporated in the policy. The construction of the policy, therefore, rests in some degree upon the interpretation of the statute.
In construing the latter we must have clearly in mind the evil sought to be remedied as well as the statute itself. (Woollcott v. Shubert, 217 N. Y. 212, 221.) This particular statute clearly had in mind the protection of the public. It was enacted to insure that a party injured through the negligence of an operator of a vehicle used for public hire should have some means of satisfying a judgment against such person and should not be left without protection against the possible insolvency of such operator. By providing that where more than one person is injured in one accident the insurance moneys were “to be apportioned ratably *336among the judgment creditors,” it .was clearly contemplated that. all persons injured in one accident should all be entitled to recourse' against the insurance moneys and that if the sum were insufficient. to pay in full, then the claims should be paid in such proportion" as they may bear to the total amount awarded by judgments.
Under plaintiff’s contention this end would be frustrated. It is here stipulated that defendant’s total liability is limited to $10,000. . The claims now actually in suit are far in excess of such amount. ‘ If plaintiff is to recover the full $10,000 by reason of judgments first aggregating that amount, those who later obtain judgments will have no protection with respect to the insurance policy here involved. This is a result clearly not contemplated by the Legislature. It would be most unfair if those but slightly injured, and who for such reason can commence their actions in courts where speedier trials may be had, can thus have their judgment claims paid in full while those grievously injured and who under the law and the terms of this policy would be entitled to larger recoveries from the insurance proceeds, are to be deprived of such right merely because of congestion in calendar conditions or otherwise, by reason of which their claims cannot be reduced to judgment * before the insurance fund has been exhausted.
The policy in question was not voluntarily obtained by the plaintiff for its own protection. It obtained such under the mandatory provisions of the statute as a prerequisite to and an indispensable condition of its operation of motor vehicles for hire. If the plaintiff desired insurance for its own protection, there was nothing to prevent it from obtaining such in the usual form. It. then would under the circumstances be entitled to reimbursement for the two claims reduced to judgment in districts of the Municipal Court. In construing this contract, therefore, we must, as already stated, bear in mind the evil sought to be remedied by the statute . and must have regard for the parties injured, rather than the insured named in the policy.
The provision in the policy that the insured must bring suit within two years after final determination of the litigation after trial, is a workable one under this construction. The plaintiff may commence successive actions as each litigation is finally determined against it, or take other appropriate measures that suggest themselves. .
Nor does the fact that the defendant has paid out sums to claimants in satisfaction of their claims for injuries arising in the same accident, require us to construe the policy against the defendant on the ground that it has given a practical'construction favorable to the plaintiff. Such fact in ordinary cases may be good evidence *337of intention with respect to the meaning of a contract. Here, however, we may not allow it to work against the interest of the real parties in interest, the injured, for whose benefit the legislation was enacted. Moreover, it well may be that as to the payments so made, this defendant will be the sole loser, having by such payments placed itself in the position of a volunteer.
Of course, no construction of this policy entirely free from practical difficulties is possible. But that suggested here seems to us to be required if the purpose of the Legislature is to be given full effect. Resulting hardships are thus not made to rest upon those for whose benefit the statute under consideration was primarily intended.
It follows, therefore, that judgment should be rendered in favor of the defendant.
Merrell, J., concurs.
Judgment directed for plaintiff for $600, with interest from October 20, 1927, and with costs. Settle order on notice.