Opinion
May 25, 1967
Order and judgment granting plaintiffs' motion for summary judgment, unanimously modified, on the law, to the extent of reducing the judgment to the sum of $9,822.31, with interest, costs and disbursements, and otherwise affirmed, without costs and without disbursements. Article V, Section 2, of the contract plainly requires the deduction of the cessation charge before applying the 95% to the contractholder fund. It is conceded that the proper deduction in this case is $2,500. The last paragraph of section 2 of article V, reads as follows: "Any such deduction made in accordance with the preceding provisions of this Section shall be made before the application of the provisions of Section 3 of this Article and shall constitute an application of a portion of the Contractholder Fund." Subdivision (c) of section 3 of the same article provides: "As of the effective date of Cessation of Contributions the Company shall pay in cash, to the Contractholder, an amount determined by the Company, but not less than 95% of the Contractholder Fund as of such date, and such payment will be in full satisfaction of the liability of the Company as to the Contractholder Fund". The said provisions are unambiguous. They provide for a cessation charge to be applied against the fund. Section 3 obligates the defendant to pay to plaintiffs no less than 95% of the balance after deduction of the cessation charge.
Concur — Botein, P.J., Stevens, Capozzoli, Tilzer and McNally, JJ.