The defendant assumed the defense of the actions against the assured with knowledge of the assured’s non-compliance with the condition of the policy requiring written notice of the accident. The record contains no evidence that the defendant assumed the defense in ignorance of the fact that the assured had been present at the time of the accident. A waiver of the breach of the condition requiring written notice was thus established, and the. subsequent stipulation of non-waiver unless shown by the defendant to be supported by consideration was ineffectual to restore the defendant’s privilege to disclaim liability on that ground. (269 Canal Street Corp. v. Zurich G. A. & L. Ins. Co., Ltd., 226 App. Div. 516; affd., 252 N. Y. 603.)
Judgments reversed and new trial ordered, with costs to appellants to abide the event.
All concur; present, Lydon, Frankenthaler and Untermyer, JJ.