Opinion
April 5, 1907.
Graham Sumner, for the appellant.
Charles D. Cleveland, for the respondent.
The same question is presented in this case as in Preston v. Ætna Ins. Co. ( 118 App. Div. 784,) decided herewith. There is a slight difference in the form of the exception, which in this case is as follows: "It is a condition of this policy that this company is not liable for any loss or damage to an automobile, any of its parts or its contents insured under this policy caused by fire originating in the automobile itself." It seems to me that the reasonable construction of this clause as in the Ætna Ins. Co. case is that the exception is to relate to a fire the exciting cause of which proceeds from the vehicle itself, and not from the outside. That this was the construction that the insurance company itself gave to this policy is shown by the fact that the assured warranted that the filling of the reservoir of an automobile was to take place by daylight only; for, if the exception covered a fire caused in consequence of the ignition of this gasoline in any other way, except in the interior of the machine, such a warranty would have been quite unnecessary. It follows that the judgment appealed from is reversed and a new trial ordered, with costs to the appellant to abide the event.
PATTERSON, P.J., LAUGHLIN and SCOTT, JJ., concurred; CLARKE, J., dissented.
Judgment reversed, new trial ordered before another referee, costs to appellant to abide event. Settle order on notice.