Depending upon presently undetermined questions of negligence and contributory negligence Mr. Buckle, the plaintiff’s insured, may eventually have judgments against him in favor of one or more of the injured claimants. His liability will arise from the presumption of ownership and of operation upon his business or with his consent because of the presence of his license plates upon the car. (Ferris v. Sterling, 214 N. Y. 249, 253.) Although actually he has parted with his ownership he will be estopped from asserting that he is no longer the owner because of his failure to comply with section 61 of the Vehicle and Traffic Law. (Switzer v. Aldrich, 307 N. Y. 56; Reese v. Reamore, 292 N. Y. 292; Buono v. Stewart *104Motor Trucks, 292 N. Y. 637.) His liability- then under section 59 of the Vehicle and Traffic Law is the same as though he were still the owner of the car and it was being driven in his business or with his permission express or implied. Such is the liability contemplated in the policy issued by the plaintiff insurance company. The policy was not cancelled by either party and did not by its terms provide for automatic termination upon transfer of title to the automobile in question. It covered its named insured for any liability arising out of the ownership, maintenance or use of the automobile in question.
“ Quite clearly, the policy covered any accident in which the vehicle was used or operated in such a way as to render the insured responsible.” (Abrams v. Maryland Cas. Co., 300 N. Y. 80, 85.)
The company did not limit its coverage so as to exclude any liability of its insured which the insured might have avoided had he complied with section 61 of the Vehicle and Traffic Law.
I feel that the insured, Mr. Buckle, is entitled under his policy to a defense by the company of any actions which may be brought against him because of the accident in question and that the company is also liable under its policy for any judgments which may be entered against Mr. Buckle, the insured, in such action or actions.
I concur in reversal of the judgment as to the defendant Shoemaker, but dissent and vote for affirmance as to the defendant Buckle.
All concur, except McCurn, P. J., and Wheeler, J., who concur in the reversal as to Shoemaker but dissent and vote for affirmance as to Buckle, in an opinion by McCurn, P. J., in which Wheeler, J., concurs.
Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.
Judgment and order reversed on the law and plaintiff’s motion granted, with judgment directed to be entered declaring that plaintiff is under no legal duty to defend or indemnify the defendants Buckle and Shoemaker from the claims of the other defendants, without costs of this appeal to any party.