(dissenting). I concur as to the reversal of the judgment, but cannot agree that the complaint should be dismissed.
The majority take the position that the failure of the insured to “immediately forward to the Company every demand, notice, summons or other process receivedhy him or his representative ” [emphasis supplied] relieved the appellant of liability under its policy, regardless of whether the insured actually received the summons and complaint or had knowledge thereof. This was not the theory upon which the case was tried. Neither at the trial nor on this appeal has appellant claimed that there was a duty upon its insured under the policy to forward to it a notice of suit which had never been received by the insured, or concerning which he had no knowledge. Consistently, upon this appeal the defendant only asks for a new trial.
In view of the conceded fact that the summons and complaint were not forwarded to the company, the trial was but an idle gesture, if the majority view is correct. Upon that premise the complaint should have been dismissed as a matter of law. The defendant chose to predicate its defense upon the theory (1) that insured’s wife, who signed the return receipt for the registered parcel, was the “ representative” of the insured, or (2) that the insured had knowledge of such service. In essence, the position of the defendant is that the policy condition does not come into effect until the assured receives some claim or other process or has knowledge that a suit has been instituted against him.
The law of this case was settled upon the trial, leaving only the simple question of fact raised and litigated. The charge of the court particularizing the single issue, whether correct or not, was not the subject of an exception along the line suggested by the majority opinion. An appellate court should confine itself to the theory upon which the case was tried and submitted *122to the jury. (Sherman v. Mason & Hanger Co., 162 App. Div. 327.) “ The authorities are numerous and uniform to the effect that a case should be disposed of on appeal upon the same theory upon which it was tried and decided.” (6 Carmody on New York Practice [2d ed.], § 336, p. 255; see, also, 9 Carmody-Wait Cyclopedia of New York Practice, §§ 325, 328, and cases cited therein.)
The policy provided that the company would pay on behalf of the insured all sums which the insured shall become obligated to pay as damages because of injury to or destruction of property, on condition that the insured shall have fully complied with the terms of the policy; the contract further provides that any person who has secured such judgment against the insured shall thereafter be entitled to recover under the policy. Although neither the insured nor the appellant appeared in the plaintiff’s original action, it is conceded that the plaintiff-respondent has a valid judgment against the insured. In pursuing this action, founded and tried upon the provisions of the policy issued in • Pennsylvania, the plaintiff stands in the shoes of the insured. Any error in the charge in regard to the effect of section 167 of the Insurance Law of this State was substantially corrected without prejudice to the defendant.
I have no quarrel with the cases, cited in the majority opinion (Citizens Cas. Co. of N. Y. v. Clark, 245 App. Div. 38; Century Ind. Co. v. Hartford Acc. & Ind. Co., 130 N. Y. S. 2d 844), which have held that the insured who has received or had notice of summons or other process has little or no excuse for noncompliance with the policy condition regarding notice to his insurer. In each of those cases the fundamental fact conceded or proven is the receipt by or knowledge of the insured of the process served upon him, the very question of fact upon which this case should turn. If we should reach the conclusion in the instant case that the insured actually received the process by which the prior suit was instituted, there is no question but that we should find the appellant free from liability. However, although service by mail may be sufficient to obtain jurisdiction of a defendant for the purpose of an action under the limited circumstances prescribed by the statute (Vehicle and Traffic Law, § 52) providing for such service, it is my opinion that service of process by that method does not necessarily indicate that the insured “ received ” the process in the sense that word is used in the policy condition.
I do not believe it was the intention of the majority of this court to b^se their decision upon a finding that the insured *123received the summons and complaint. If such were the case, I would not concur for the reason that that narrow issue of fact is a jury question. Nor can I concur with what appears to be the ultimate import of the majority decision to the effect that the mere failure of the insurer to receive notice of the action relieves the company of liability. Its policy contains no such provision. It occurs to me that it is asking too much of an insured to forward to his insurer information or legal process which he does not know exists. The difficulty here, as I see it, is in the fact that any form of substituted service and knowledge or receipt of the process are not synonymous. If either the insured or the insurer is to bear the loss, the burden should rest on the party who drafted the contract, which could be simply and easily written to protect the insurer in such cases.
The trial court, in my judgment, has properly held that the insured’s wife, in receiving and receipting for the registered parcel containing the summons and complaint, was not his ‘ ‘ representative ’ ’ within the meaning of the policy condition. This left the sole issue in this case — did the insured receive the summons and complaint or have knowledge that the process had been received by his wife? This is the precise question presented the jury and is the sole ground upon which the judgment should rest.
If, then, it were not for the paucity of proof, the judgment appealed from should be affirmed. However, the finding implicit in the verdict that the insured never received or had knowledge of the summons and complaint is, in my opinion, against the weight of the evidence, which calls for a reversal and a new trial.
All concur, except Wheeler and Van Duser, JJ., who concur as to the reversal but vote for granting a new trial, in an opinion by Wheeler, J., in which Van Duser, J., concurs. Present — McCurn, P. J., Kimball, Piper, Wheeler and Van Duser, JJ.
Judgment reversed on the law, without costs of this appeal to either party, and complaint dismissed, without costs.