(dissenting). The policy did not insure plaintiff against the claim which is now being asserted since injuries to an employee were specifically excepted.
The order authorizing service of the cross complaint could not be vacated. (Westchester L. Co. v. Westchester C. S. E. Corp., 278 N. Y. 175.)
With regard to claimed prejudice by reason of lack of opportunity to settle the case the following facts are not .disputed: Plaintiff’s attorney after receiving the papers obtained an adjournment of the trial from January 29th to February 7th and never thereafter asked for any further adjournment; the Burris trial started February 7th but the defense did not begin until February 16th, almost a month after defendant had disclaimed. Apart from speculation, could the jury say plaintiff did not have opportunity to settle in that period of time ?
When the insurer retains control of the defense to judgment the insured need not show prejudice, but it is presumed. (Moore Constr. Co. v. U. S. Fidelity & Guarantee Co., 293 N. Y. 119, 124.) By such action the insured is deprived of any control of its own case until the judgment has gone against it. (Rosen*37bloom v. Maryland Casualty Co., 153 App. Div. 23, 25.) That is not the fact in this case. Here the insurer did not receive the papers until the Burris case was on the Day Calendar and returned them about a month before this plaintiff had to adduce evidence on its defense at that trial. Here the insured conducted its own defense.
Under the facts disclosed, it was necessary for the insured to show prejudice by the insurer’s conduct. The record of the trial in the Federal court in which Burris, the injured man. was plaintiff, was offered and received in evidence in this trial. There this plaintiff contended that the accident occurred because of sabotage in a strike. Burris denied this and claimed that the rope that broke wTas an old, worn rope this plaintiff directed him to use after he had called attention to its worn condition. Plaintiff’s rope remained in the police station nearly a year after the accident. Thereafter plaintiff used the rope at the World’s Fair during 1939 and when the Fair closed at the end of October, 1939, plaintiff abandoned the rope there as “ worthless ”. All this occurred before defendant ever received the cross complaint on November 6,1939. Apart from mere speculation could the jury find that, if defendant had disclaimed earlier, plaintiff would have found its “ ivorthless ” abandoned rope; or if found, that such rope would have changed the result? The Burris record shows that case was fully tried. Plaintiff’s representative admitted on this trial that he could not name a single additional witness that could have been produced. Plaintiff failed to establish any specific facts from which the jury, apart from sheer speculation, could find prejudice.
Accordingly, I dissent and vote to affirm.
Martin, P. J., and Untermyer, J., concur with Cohn, J.; Dore, J., dissents and votes to affirm in opinion in which Callahan, J., concurs.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.