The opinion of the court was delivered by: EDELSTEIN
1. The plaintiff is a Delaware corporation authorized to conduct business in the State of New York, and maintains an office for the transaction of business in the City, County and State of New York.
2. The defendant is a Maryland insurance corporation authorized to conduct the business of casualty insurance in the State of New York, and maintains an office for that purpose in the City, County and State of New York.
3. On February 13, 1958, the date on which this action was removed from the Supreme Court of the State of New York, County of New York, the matters in controversy herein exceeded, and still exceed, the sum of $ 3,000, exclusive of interest and costs.
4. On and prior to January 18, 1955, one Kramer Construction and Contracting Co., Inc., of No. 524 South 12th Street, Newark, New Jersey, was the named insured under a certain policy of automobile liability insurance bearing No. 27-138427, a true or authentic copy of which is marked in evidence herein as Plaintiff's Exhibit 1.
5. This policy of automobile insurance was in full force and effect on January 18, 1955.
6. This policy of automobile liability insurance defines the term 'insured', as used therein, as follows:
'The unqualified word 'insured' includes the named insured and also includes, under divisions 1 and 2 of the Definition of Hazards, any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and under division 3 of the Definition of Hazards, any executive officer of the named insured.'
7. This policy of automobile liability insurance contains the following under Item 5(c) of the Declarations:
'Use of the automobile for the purposes stated includes the loading and unloading thereof.'
8. On January 18, 1955, one Frank Leva, an employee of Kramer Construction and Contracting Co., Inc., was injured while loading bags of napthalene onto an automobile truck owned and controlled by said Kramer Construction and Contracting Co., Inc., and included within the coverage of the policy of automobile liability insurance heretofore described, at Pier No. 15, in the Borough of Brooklyn, City and State of New York.
9. The bags of napthalene had previously been unloaded by the plaintiff from one of its ships which was berthed at Pier No. 15.
10. Frank Leva thereafter commenced an action in this Court against the plaintiff herein to recover damages for his injuries.
11. The complaint in the action brought by Frank Leva against the plaintiff herein, which is annexed to and incorporated into the complaint in this action and which is marked into evidence as Plaintiff's Exhibit 2, alleges that the injuries received by Frank Leva on January 18, 1955, were caused solely by the negligence of the plaintiff herein in its handling of the bags of napthalene loaded by Leva at the time he was injured) during the course of their sea transit by the plaintiff and the negligence ...