Opinion
01-05-1955
Thomas J. Atkins & His Five Sons, Ltd., Appellant, v. Massachusetts Bonding & Insurance Company, Respondent.
Ira M. Greene for appellant. Peter A. Verdirame and Anthony J. De Cicco for respondent. COLDEN, KLEINFELD and HART, JJ., concur. Per Curiam. The respective rights and obligations of the parties should have been determined from the insurance policy, without regard to criminal law statutes and cases, since "An insurance policy or bond is no different than any other contract, and comes within the same rules of construction" (Kean v. National Sur. Co., 241 N.Y. 252, 258). Applying the pertinent part of the definition of robbery as stated in the policy here to the circumstances expressly set forth and accepted by the trial court (Atkins & His Five Sons v. Massachusetts Bonding & Ins. Co., 205 Misc. 676, 678-679), it is the opinion of this court that plaintiff established a loss by robbery. The finding of the trial court that the force or fear exerted upon plaintiff's custodian was employed as a means of escape rather than to obtain or retain the money (205 Misc., p. 680) is in direct conflict with the trial court's own summary of testimony adduced on behalf of plaintiff, which it expressly accepted (205 Misc., p. 679). In any event the insurance policy did not make the distinction spelled out in the penal statute (Penal Law, § 2121), relied upon by the trial court and none is required to be drawn from the language used, giving to it the meaning ascribed by common thought and speech (Abrams v. Great Amer. Ins. Co., 269 N.Y. 90, 92-93) and resolving ambiguity, if any, in favor of the plaintiff (Aldrich v. New York Life Ins. Co., 235 N.Y. 214, 223). The records introduced by plaintiff were sufficient to enable defendant accurately to determine the amount of the loss. The judgment should be unanimously reversed upon the law and the facts, with $30 costs to plaintiff, and judgment directed for the plaintiff for the sum of $1,496.03, with appropriate costs, in the court below. Judgment reversed, etc.