(concurring). I concur in both Judge Crapser’s opinion and the decision of affirmance. There are certain reasons *46which move me to this conclusion in addition to those set forth by my learned brother.
The use of the declaratory judgment for the predetermination of policy defenses in connection with suits arising out of automobile accidents has been resorted to with increasing frequency by insurance companies in the last few years. (See Automobile Insurance and the Declaratory Judgment, by Appleman, Am. Bar Assn. Jour. vol. XXII, No. 7, July, 1937.) It may readily be conceded that in many instances this type of action will determine in advance the advisability of instituting or continuing the prosecution of negligence actions against the assured and many of the issues arising in those actions. It often results in a speedier and more economical disposition of these types of cases. It is not a new remedy in this regard in our own State. (See Post v. Metropolitan Casualty Insurance Co., [1929] 227 App. Div. 156; affd., 254 N. Y. 541.) This remedy should be applied liberally wherever it will result in setting the controversy at rest even more speedily or more economically. “ The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations. * * * No limitation has been placed or attempted to be placed upon its use, and yet this main purpose underlies the exercise of discretion.” (James v. Alderton Dock Yards, 256 N. Y. 298.) But in the instant case it appears to have been a wise exercise of discretion by the court below to decline to entertain the controversy and to avoid determination of a portion of the rights of these various parties in this ldnd of action.
A declaratory judgment here will not dispose of the issues in the pending negligence actions and will not result in the avoidance of any litigation. The defense alleged by the insurance company as available in the actions which may ultimately be brought upon its policy is one of coverage. It claims that the automobile truck was not at the time of the accident being used for a purpose specified in the policy. The policy itself restricted the coverage to a commercial use, and defined this use as being “ the transportation or delivery of goods, merchandise or other materials and uses incidental thereto, in direct connection with the named insured's business occupation.” This question of commercial use is not coextensive with the provisions of section.59 of the Vehicle and Traffic Law, which impose liability upon the owner of the motor vehicle when it is being operated by any person legally using or operating the same “ with the permission express or implied, of such owner.” It is quite conceivable that the truck was being operated in a noncommercial use, with the permission of the owner. This question *47of consent, and not merely that of commercial use, is involved in the negligence actions. Thus a determination of the question of commercial use will benefit only the insurance company, and will not dispose of the issue of permission. Permission is an issue in the negligence actions, and once disposed of there, will not arise in a subsequent action on the policy.
Also, it does not appear that either the owner or operator of the motor vehicle is insolvent and that the judgments which may be obtained against them in the negligence actions cannot be enforced against them aside from the insurance which they carried. The negligence actions will still have to be tried, and they should not be hampered or circumscribed by a predetermination of the commercial use issue. Controversies should not be tried piecemeal or so as to interfere with actions already pending. (Ætna Casualty & Surety Co. v. Quarles, 92 F. [2d] 321.) Then, too, it may never be necessary for the insurance company to defend an action brought upon its policy for the plaintiffs may be unsuccessful in their negligence actions.
Under these circumstances, where the declaratory judgment will not settle all the issues or finally dispose of the controversies and may only result in beclouding them, resort to this remedy should not be permitted. (Wolverine Mutual Motor Ins. Co. v. Clark, 277 Mich. 633; 270 N. W. 167.) Certainly the trial of the negligence actions should not be stayed while a declaratory judgment action is being tried. These plaintiffs in these negligence actions are entitled under our Constitution to jury trials, and they should not be circumscribed in this right when no benefit or advantage will ensue.
A like conclusion was reached by the United States Circuit Court of Appeals, Fourth Circuit, in Ætna Casualty & Surety Co. v. Quarles (supra), under a set of facts quite similar to the one now before us.
The Special Term properly denied the motion to restrain the trial of the negligence actions and dismissed the complaint in the action for a declaratory judgment.
Hill, P. J., Rhodes and McNamee, JJ., concur.
Order affirmed, with costs.