Opinion
December 17, 1958
Appeal from the Oswego Trial Term.
Present — McCurn, P.J., Williams, Bastow, Goldman and Halpern, JJ.
Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The trial court erred in excluding the proffered testimony of defendant's agent, Koski, and its special agent, Foster, as to conversations had with plaintiff, Stanley Germaine, prior to the issuance of a policy in January, 1955. While the present action is based upon a renewal of that policy there was proof before the jury that prior to 1955 defendant had issued to plaintiffs a liability policy covering the entire building. It is the contention of defendant that in January of that year plaintiffs requested less expensive coverage and thereupon a policy was issued to cover only the restaurant premises at 7 South Second Street. The policy as issued is patently ambiguous. In one place the insured premises are described as 200 Oneida Street where concededly the accident occurred. Elsewhere in the policy it appears that the premium was computed upon a certain square foot area, which defendant claims is the restaurant conducted by plaintiffs at 7 South Second Street, although such street address does not appear in the document. The sharp issue to be decided by the jury was the extent of the coverage afforded by the policy, which upon its face was ambiguous. The rule is well established that "Where the meaning of the contract is not clear, the situation of the parties and the surrounding circumstances at the time of the making of the contract are to be taken into consideration." (2 Clark, New York Law of Contracts, § 801.) All concur.