concurs in the affirmance of the judgment, with the following memorandum: While I concur, I do so on constraint of M. S. R. Assoc, v Consolidated Mut. Ins. Co. (58 AD2d 858) and Buttignol Constr. Co. v Allstate Ins. Co. (22 AD2d 689, affd 17 NY2d 476), I do not believe that a rule precluding an action by an insured against his carrier for damages in excess of policy limits unless the carrier is indulging in fraud in its dealings with the general public has current viability.