Sirvint v. Fidelity & Deposit Co. of Maryland , 242 A.D. 187 ( 1934 )

Untermyer, J.

The complaint alleges a cause of action upon a policy of insurance known as a “ Messenger and/or Interior Robbery Policy,” issued by the defendant on October 8, 1930, for a loss sustained by the plaintiff in consequence of robbery. The answer denies various allegations of the complaint but admits the execution of the policy and sets forth, as an affirmative defense, that the policy contains the following warranty: “ The Assured has not sustained nor received any indemnity for any loss or damage by Burglary, Theft or Robbery within the last five years, except as follows: No exceptions.” It is then alleged that the assured, the plaintiff in this action, had sustained a loss by burglary, theft or robbery within the last five years before the execution of the policy and that the warranty contained in the policy was false. The plaintiff served a reply in which he does not deny the warranty and in which he furthermore “ admits that the plaintiff herein has sustained a loss by burglary, theft or robbery within five years from October 8, 1930, the date the said policy went into effect, but that the said loss was not covered by any insurance nor did the assured receive any indemnity therefor.”

The question presented is whether it is the meaning of this provision of the policy that the assured within five years had not sustained any loss or damage by burglary, theft or robbery nor received indemnity for any loss or damage so incurred or whether, as the court below decided in denying the defendant’s motion for judgment on the pleadings, the meaning can reasonably be ascribed to it that the assured only warranted that he had not received indemnity for such a loss. If the provision of the policy is ambiguous, then the motion was properly denied. (Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Nellis v. Western Life Indemnity Co., 207 id. 320.) If, on the contrary, the meaning is free from any doubt, the plaintiff should not be permitted to maintain the action upon the mere assertion of a claim of ambiguity which the language of the policy does not justify.

We are of opinion that the language of the warranty is not ambiguous and that, fairly construed, it is susceptible of only one interpretation. For, if we attempt to interpret the provision as the plaintiff suggests, it produces a result which is too absurd to be seriously entertained. We must then read the warranty as providing that the assured “ has not sustained * * * indemnity ” for loss or damage by burglary, theft or robbery. It is incredible that any one reading the warranty could place upon it a construction which would make “ indemnity ” the direct object of the word “ sustained.” The only construction which is consistent with the language of the warranty is to imply the clause “ any loss or damage by Burglary, Theft or Bobbery within the last five years ” to follow the word “ sustained.” The omission of a word or clause to avoid repetition is a common grammatical practice known as elliptical construction. A sentence so constructed is ambiguous only when the omission renders possible more than one interpretation. Here it does not do so and the warranty is, therefore, not ambiguous.

The intention would perhaps be even clearer if the clause “ nor received any indemnity for ” were separated by commas. But the absence of punctuation is not fatal where, even without punctuation, the meaning is clearly expressed. (Ewing v. Burnet, 36 U. S. [11 Pet.] 41, 54; Brown v. Public Service B. Co., 98 N. J. L. 747.) “ The words control the punctuation marks, and not the punctuation marks the words.” (Holmes v. Phenix Ins. Co., 98 Fed. 240.)

The order should be reversed, with twenty, dollars costs and disbursements, and the motion granted.

Finch, P. J., and O’Malley, J., concur; Merrell and Martin, JJ., dissent and vote for affirmance.