I dissent from the opinion of Judge Rhodes for reversal and vote to affirm the judgment and order appealed from.
This plaintiff comes within the express provisions of present subdivision 1 of section 109 of the Insurance Law. She is an injured person who has recovered judgment for the injury she sustained against a person insured under the policy, namely, the driver of the automobile. As such injured person who has recovered such a judgment she may maintain an action against the insurer. The terms of the policy which attempt to exclude her from the benefits of section 109 are a violation of this section, and are, therefore, ineffectual.
Judgment reversed on the law, with costs, and complaint dismissed, with costs.