| N.Y. Sup. Ct. | May 22, 1910
Defendant, by its policy of insurance, agreed to indemnify plaintiffs “for direct loss by burglary of any of its merchandise * * * occasioned by its felonious abstraction from the * * * premises * * * by any person or persons who have made forcible and violent entrance upon the premises, or exit therefrom, of which force and violence there shall, be visible evidence.’’ The policy further provides, under the heading “Special Agreements,” as follows:
“The company shall not he liable (a) unless there are visible marks upon the premises of the actual force and violence used in making entry into said premises or exit therefrom.”
The facts in the main are undisputed. On the morning of July 2-7, 1907, the store of the plaintiffs was opened by two of their employés at about 7:30 o’clock, to make ready for business. The door to the loft was opened with a key. A short time thereafter, on the same day, one Kennedy, a former employe of the plaintiffs, in company with his brother, entered the loft by the same door, which was closed; they turning the knob and opening it. Then with a pistol they threatened and assaulted Goldsmith, one of the clerks, bound and gagged him, and robbed the store of silks to the value of $1,050, and left the premises in the same manner as they entered. The burglars were afterward arrested and convicted, but the goods were never recovered. There can be no doubt that the goods were “feloniously abstracted” by a “forcible and violent entrance upon the premises,” and that a burglary was committed, within the meaning of section 400 of the Penal Law (Consol. Laws, c. 40). Where the door of the house is tightly closed, without being either bolted, locked, or fastened, it is burglary to open it and enter the house with the purpose of stealing. Tickner v. People, 6 Hun, 657.
There now remains but one question, whether or not the provision of the policy that the company shall not be liable, unless there are visible marks upon the premises of the actual force and violence used in making entry into said premises or exit therefrom, controls or limits the language of the policy, so as to prevent a recovery under the circumstances herein set forth. When a policy is written by the insurer, and it had its choice of language in stating the contract, it must be held to the rule, common in construing all contracts, that the terms thereof are to be construed strictly against the person whose language is used in expressing it. Schumacher v. Great Eastern C. & I. Co., 197 N.Y. 58" court="NY" date_filed="1909-12-17" href="https://app.midpage.ai/document/schumacher-v-great-eastern-casualty--indemnity-co-3620513?utm_source=webapp" opinion_id="3620513">197 N. Y. 58, 90 N. E. 353. While no case has been called to my attention which is precisely like "this, the courts have had occasion to construe policies of insurance, classed as accident policies, where the words “visible evidence” and “visible marks or signs” have been used. Root v. London Guarantee & Accident Co., 92 A.D. 578" court="N.Y. App. Div." date_filed="1904-03-15" href="https://app.midpage.ai/document/root-v-london-guarantee--accident-co-5194732?utm_source=webapp" opinion_id="5194732">92 App. Div. 578, 86 N. Y. Supp. 1055,
I think this case is within the doctrine laid down in the cases cited, and the motion to set aside must be denied.