I dissent and vote to affirm the judgment.
On July 8, 1955, plaintiff Ignatz Tyrnauer purchased a 1953 station wagon and, through his broker Eosenfeld, caused it to be insured by defendants. In a binder, also used for rating-classification, Ignatz, described as a teacher, was held out as using the car only for pleasure, with “No business use, no passengers carried for school.” The rate was based on a class 1A risk. Ignatz was named in the policy as insured and as sole owner. The policy provides that it applies only if the automobile is owned, maintained and used for the purposes stated in the declarations, and that assignment of interest under the policy shall not bind the company until its consent is indorsed thereon.
In January, 1956, without notice to the insurers, Ignatz transferred record ownership to a corporation conducting a children’s camp. He did this by an instrument, to be presented by the new owner in conjunction with an application for license plates, in which instrument Ignatz stated that he was the owner “ and have disposed of the vehicle as shown above.” In 1956 the car was registered in the name of the corporation. Had the insurers known of the change of ownership to a corporation operating a camp, they would have refused to change the policy so as to insure the new owner. The insurers were entitled to decide for themselves the question of coverage, in the light of the different ownership.
When Ignatz disposed of his car to the corporation, his insurance was at an end. Coverage arising out of ownership, maintenance or use of a described automobile ceases with the transfer of the ownership of the described automobile unless notice has been given to the insurer and the insurer consents to extension of the coverage (Phoenix Ins. Co. v. Guthiel, 2 N Y 2d 584, 589).
The holding in Abrams v. Maryland Cas. Co. (300 N. Y. 80, 85) to the effect that the insurer remained liable despite transfer of title, though based on the express ground that under the terms of the policy the former owner retained an insurable interest, now seems to be distinguished on the facts, i.e. that the former owner continued to use the truck in its business (Phoenix Ins. Co. v. Guthiel, supra, p. 590; Switzer v. Merchants Mut. Cas. Co., 2 N Y 2d 575, 584).
*302The policy in question here admits of no interpretation other than that, in conformity with the authority cited in the Phoenix Ins. Co. case {supra), the insurance terminated upon change of ownership without consent to extension by the insurers. Were it otherwise, the insured would be at the mercy of a former owner with respect to testimony, constituting a question of fact, of continuance of maintenance and intention despite disposal of the car. At any rate, there is no question here, as under Abrams {supra), of a continuance of an original and insured commercial use.
When the accident occurred on August 6, 1956, while still another individual, plaintiff David Tyrnauer, was operating the car, it was no longer insured by defendants.
We are not concerned with whether, despite disposal, Ignatz remained liable under a definition of the term “ owner ” as used in section 388 of the Vehicle and Traffic Law. We are concerned with the terms and interpretation of the policy, and not with the terms and interpretation of the statute (Lavine v. Indemnity Ins. Co. of North America, 260 N. Y. 399; City of Albany v. Standard Acc. Ins. Co., 7 N Y 2d 422, 430; Mason v. Allstate Ins. Co., 12 A D 2d 138).
The meaning of the policy is clear.
Nor did the insurers waive the termination of the renewal policy and agree to abide by its terms as if the accident were within the coverage. Cancellation was prompt upon notice to insurers of the accident; at no time did insurers waive. Tender of the entire premium was made. When, months after the accident, a representative of Ignatz sought to amend the terms of the policy so as to have the accident covered, the application was promptly refused.
Nolan, P. J., Christ and Pette, JJ., concur with Brennan, J.; Ughetta, J., dissents in opinion.
Judgment reversed on the law and the facts, with costs to plaintiffs; and judgment directed, with costs, in favor of plaintiffs, declaring: (1) that under said policy plaintiffs are insured against liability arising from said accident; (2) that defendants are required to undertake the defense of any actions against plaintiffs seeking to enforce their liability for damages or injuries sustained in such accident; and (3) that, to the extent of the limits of such policy, the defendants are required to pay any judgments which may be rendered against plaintiffs, or either of them, in such actions.
Findings of fact insofar as they may be inconsistent with the majority opinion herein, are reversed, and new findings are made as there indicated.