Lumpkin v. Ætna Casualty & Surety Co. , 21 A.D.2d 860 ( 1964 )

Order and judgment (one paper), entered on December 19, 1963, vacating a stay of arbitration and directing the parties herein to proceed to arbitration, unanimously reversed, on the law and on the facts, and judgment granted in favor of the respondent-appellant dismissing the petition with no allowance for costs to either party by reason of the inadequate appendix and briefing by both parties. The claimants were injured when the automobile in which they were riding as passengers and owned by one Lindsay and insured by the defendant insurance company, collided with an automobile owned and operated by one Williams. On April 18, 1963 Mr. Justice Carnet temporarily stayed the arbitration demanded by the claimants pursuant to an uninsured automobile endorsement contained in defendant insurance company’s policy, pending a hearing to determine whether or not Williams’ automobile was uninsured. After a hearing held on May 6, 1963 the court vacated the stay and directed the parties to arbitrate holding that the Williams’ automobile was uninsured. The principal evidence introduced by claimants was a letter from Williams in reply to a letter from claimants’ attorney in which Williams stated that “ he had no insurance.” Although the lower court held that “ The evidence clearly demonstrates that the motorist in question was in fact uninsured,” our review of the record does not substantiate that finding. The letter which was undoubtedly sent by Williams does not make it clear that the insurance therein referred to was automobile liability insurance nor does it state that no such insurance was in effect on the date of the accident. In addition, the letter was inadmissible as hearsay (Matter of Rosen [MYA1C], 20 A D 2d 704) and without this evidence the finding of the trial court was untenable. Concur — Breitel, J. P., Rabin, Tálente, Stevens and Staley, JJ.