(dissenting). I would affirm.
Plaintiffs’ right to sue defendant insurer is purely statutory (Jackson v. Citisens Cas. Co., 277 N. Y. 385). It is elementary that to take advantage of a statutory claim plaintiff must meet any conditions imposed by the statute. One of the conditions is service of notice of entry of the judgment on the insured or his attorney (Insurance Law, § 167). This condition is mandatory (McNamara v. Allstate Ins. Co., 3 A D 2d 295).
The action against the insured was originally defended by an attorney designated by the defendant insurer. Before the *94entry of judgment that attorney was allowed to withdraw by the court. 'There was no appeal from this ruling. The effect was that there was no attorney for the assured upon whom the judgment could have been served and no grounds for predicating any relief due to the absence of .such an attorney.
Plaintiffs claim to have complied with the condition of the statute by serving the insured in two ways, as provided by CPLR 2103. The first was by mailing to the insured’s last-known address (CPLR 2103, subd. [b], par. 2); the second, by filing the judgment (CPLR 2103, subd. [d]). The difficulty with this contention is that CPLR 2103 has no application. That section refers to papers in an action, and subdivision (b) commences: ‘ ‘ Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action ”. And all of the provisions of the rule have reference to such papers. The judgment against the insured is not a paper to be served in the action pending against the insurer. On the contrary, it is a paper that must be served on a third party before that action can be initiated.
The Insurance Law does not provide how the judgment shall be served on the judgment debtor. Justice Bastow in McNamara v. Allstate Ins. Co. (3 A D 2d 295, 299, 300, supra) states that the legislative purpose in requiring service on the insured is not clear but that it may be that this is the first notice that the insured has that there is a judgment against him. This could well be the situation where, as here, the underlying judgment was entered on a default. The protection afforded would be that measures to collect the default judgment would not be allowed until there was a reasonable probability that the insured knew he had been cast in damages and alerted to the fact that unless he comes forward to assert any claim that he may have to the invalidity of the judgment, the processes of collection will ensue. If this is the legislative purpose — and no other has been suggested — it must be clear that the only service that will accomplish the legislative purpose is one that is reasonably calculated to bring the fact that there is a judgment to the insured’s attention. It is patent that neither of the two methods relied upon here will accomplish this result. Filing an additional copy of the judgment in the court where the judgment was entered is certainly not going to give any notice that the original judgment did not give. And mailing a copy to an address where, as here, it is known, that the debtor does not reside, is not notice but merely a perfunctory gesture (Polansky v. Paugh, 23 A D 2d 643).
*95The foregoing is not to say that the service required by the Insurance Law (§ 167) is the same as that required for a summons. But it is to say that the only permissible form of service is one that indicates a reasonable probability of bringing notice to the insured. No such service being alleged, a jurisdictional fact is lacking and the complaint was properly dismissed.
Botein, P. J., Rabin and Valente, JJ., concur with Wither, J.; Steuer, J., dissents in opinion.
Order, entered on November 16, 1964, granting the motion to dismiss the complaint, reversed, on the law, with $30 costs and disbursements to the appellants, and the motion to dismiss the complaint denied,