The opinion of the court was delivered by: CONGER
This suit was tried to the Court without a jury upon two claims for relief.
The first claim seeks judgment declaring the extent of liability under an insurance policy issued by the plaintiff to the defendant Victory Fur Cleaning Company. Alternatively, the claim seeks reformation of the policy.
The second claim is one in the nature of a bill of interpleader and involves all the defendants including coat owners and retail furriers whose garments were in the custody of Victory.
The defendant Victory, a partnership, was in the business of storing and cleaning fur garments owned by others. A burglary occurred at its premises on November 19, 1947 in which customers' goods of the value of $ 30,000 were taken. Victory maintains that the plaintiff is liable for the entire loss under the terms of the 'Customers' Goods Policy' obtained from the plaintiff on May 5, 1947. The plaintiff concedes liability for 50% of the loss and no more.
The pertinent provisions of the policy giving rise to the controversy are as follows:
'It is understood and agreed that the limits of liability under this policy are as follows: * * *
'a. $ 25,000 in any one loss, disaster or casualty via railway express, warranted 10% of value to be declared to express company.
'b. $ 7,500 in any one loss, disaster or casualty in custody of messengers or employees of the assured afoot or in private passenger vehicles and/or hand-cart.
'c. $ 350,000 in any one loss, disaster or casualty while in premises No. 114- 16 West 27th Street, New York City.
'd. In the event of loss or damage to the property insured hereunder the same shall be adjusted in accordance with the value shown on receipt issued by the assured or the assured's customer to the owner of said property, including the actual cost of labor incurred and material used by the assured in the process of work performed on same.'
'e. 'Adjustment and Payment of Premium: It is understood and agreed that this company;s liability is 50% of the above limits at rate of $ 1.25 per $ 100.00 of gross receipts as invoiced to customers, whereby this company is to receive 50% of monthly declaration and shall be due and payable on the 10th day of each month for the preceding month.'
An endorsement on the policy made June 12, 1947 reads: 'Notwithstanding anything to the contrary contained in the policy itself, it is understood and agreed that this company shall not be liable in any one loss, disaster or casualty, either in case of partial or total loss, or salvage charges, or any other charges or expenses, or all combined, for more then 50% of the amounts shown in the policy, all other terms and conditions remaining unchanged.'
From these provisions Victory reasons that the plaintiff is liable for the entire loss since $ 30,000 is less than '50% of the * * * limits' of $ 350,000: while the plaintiff urges that the policy intends liability to extend to 50% of the loss only.
A casual reading of the policy might give the impression that Victory is correct in its attitude but upon closer study it may be seen that the policy is susceptible to the plaintiff's interpretation, too.
Included among the 'limits' of the policy is 'the value shown on receipt issued by the assured or the assured's customer to the owner of said property.' A loss is adjusted in accordance with such value.
Therefore, each receipt value represents a limit of liability of which the plaintiff is ...