Goldsborough Banyer, Plaintiff, v. The Albany Insurance Company of Albany, New York, and Others, Defendants

Goldsborough Banyer, Plaintiff, v. The Albany Insurance Company of Albany, New York, and Others, Defendants. Insurance policy — the words “all other permanent fixtures" held, not to include counters and shelving in a store. The lower floor of a building was used as a dry goods store, in which were situ- . ated a quantity of shelving and counters. The counters and shelving were not framed or built with or into the building, and were capable of being easily removed without injury to themselves or to the building. The owner of the building, who also owned the counters and shelving, procured a policy of fire insurance containing the following typewritten description of the insured property: “ On his brick, metal and asphalt roof building, including gas, steam and water pipes, and all other permanent fixtures contained therein, occupied for. stores, offices and other hazardous and extra hazardous purposes.” The policy also contained the following printed clause: ‘‘ This company shall not be liable for * * * nor unless liability is specifically assumed hereon for loss to awnings * * * store or office furniture or fixtures.” Meld, that the words “all other permanent fixtures contained therein” did not include the counters and shelving; That such words should be construed in the light of the words in connection, with which they were used, and meant permanent fixtures of the same class as gas, steam and water pipes. Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. Lewis JR. PcurT&er and Ma/rcus T. Hun, for the plaintiff. Michael H. Oardozo, for the defendants. [MAJORITY — Smith, J.:] Smith, J.: Upon the 1st day of June, 1898, the plaintiff was the owner of certain real estate situated in the city of Albany, the lower part of which was used as a dry goods store. In that store were certain shelves and counters owned by the plaintiff used for the storage of goods. Some of these were entirely loose, to be placed anywhere in the store, and it is stipulated that “ the counters and shelving and office fixtures were not framed or built with or into the building insured, and were capable of being easily removed without injury to them or to the building.” The policy was written upon a standard blank policy which contained this. printed clause: “ This company shall not be liable for * * * nor unless liability is specifically assumed hereon for loss to awnings, * * * store or office furniture or fixtures.” The clause of the policy describing the property covered thereby was typewritten and provided as follows: ■“ On his brick, metal and asphalt roof building, including gas, steam and water pipes, and all other permanent fixtures contained therein, occupied for stores, offices and other hazardous and extra hazardous purposes.” The determination of this controversy depends upon the construction which should properly be given to the expression “ all other permanent fixtures contained therein.” If this expression should properly be deemed to include the shelving and counters which were thus attached to the store building, the plaintiff is right in his contention, otherwise the defendants must prevail. The defendants admit at the outset that if there be an ambiguity in this contract, it must be construed against the insurers. They insist, however, that there is no substantial ambiguity which authorizes the application of this rule of interpretation. The provision in the contract exempting the defendants from liability for “ store or office furniture or fixtures ” unless liability is specifically assumed hereon ” protects the defendants from liability for the loss of this shelving and these counters, unless the plaintiff can point to some other clause which creates a specific assumption of liability for. loss thereon. In the description of the property named as insured is included gas, steam and water pipes,. “ and all other permanent fixtures contained therein;” It is a familiar rule of interpretation of contracts that words must be construed in the light of other words in connection with which they are used. The words “ all other permanent fixtures ” are. used in connection with such fixtures as gas, steam and water pipes. It would seem to me to do violence to this rule of interpretation to hold that these store fixtures which it has been stipulated could be easily removed without injury to them or to the building, were of the same class of permanent fixtures as gas, water and steam pipes. If they are not, the .plaintiff has failed to point out where liability therefor has been specifically assumed in the contract of insurance, and the defendants are relieved from liability under the general clause of their contract which exempts from liability for “ store or office furniture or fixtures.” I am of opinion, therefore, that judgment must be directed for -the defendants^ with costs. All concurred. Judgment directed for defendants, with costs.