(dissenting in part). I concur in the modification of the judgment as to defendant Cosmopolitan. However, I must dissent as to the majority’s formalistic and restrictive interpretation of the “uninsured driver” clause in plaintiff’s policy with defendant USF&G. Unquestionably the purpose of such a clause was to protect the plaintiff, an insured person, against damages by a financially irresponsible party. Unless the language of the policy is so crystal clear as to permit but one contrary .interpretation, the clause should be construed to accomplish its evident purpose. In case of ambiguity, the construction must be against the insurer. To give a reasonable meaning to this clause, consistent with its beneficent purpose, it should be construed to mean that a motorist is uninsured when there is no applicable insurance to cover plaintiff’s claim, *339whether such failure results from no insurance at all or a disclaimer by an insurer after the accident. The word “ applicable ” used in the policy is ambiguous. Where there is a subsequent disclaimer, it may well be said there was no insurance ‘ ‘ applicable ’ ’ at the time of the accident. I would so hold and would reject the conclusions of Matter of Berman (Travelers Ind. Co.) (11 Misc 2d 291) and Matter of American Nat. Fire Ins. Co. (McCormack) (15 Misc 2d 692), the two nisi prius decisions relied on by the majority of this court. In referring to those two cases, the author, in Appleman, Insurance Law and Practice (vol. 7, § 4331, p. 215, n. 2.75) says: “These results are also open to question as being, perhaps, unwarrantedly narrow. After all, is not a vehicle uninsured if there is no coverage available to pay damages as much as if no coverage had been purchased in the first instance? ’ ’
Although the MYAIC Law became effective after the issuance of the policy in suit, the purposes of that law bear significantly upon the issue here presented. Plaintiff need not be denied a remedy because his policy was issued some six months before MVAIC became effective. The accident occurred after January 1, 1959. The policy should therefore be construed to place plaintiff on a parity with those who obtained policies after January 1,1959, where as appears here, the language is susceptible of such a construction. I would reverse the judgment as to USF&G and grant plaintiff summary judgment declaring that plaintiff is covered by the ‘ ‘ uninsured motorist ’ ’ clause in his policy in the event Cosmopolitan’s disclaimer should be sustained.
Botein, P. J., Bbeitbl, Babin and Staley, JJ., concur in Per Curiam opinion; Valente, J., dissents in part in opinion.
Judgment and resettled order modified, on the law, to the extent of denying summary judgment to defendant, Cosmopolitan, with $50 costs to plaintiff against defendant Cosmopolitan, and otherwise the judgment and resettled order are affirmed, with $50 costs to defendant United States Fidelity & Guaranty Company against plaintiff. Settle order on notice.