Ayers v. Palatine Insurance Co., Ltd., of London

*336 Andrews, J. At 358-360 Elk street, Buffalo, the plaintiff occupied as a public garage and repair shop a brick and frame building of one floor, thirty-three feet wide and fifty-five feet deep. Some time in the summer of 1919 he built in the rear of it what, he himself calls a concrete addition, one story high. This was the same width as the original building and eighty-five feet deep. The side walls were a continuation of the side walls of the front building. The front wall was its rear wall. The floor was of cinders. Opening into the original building was a wide doorway. The addition was used for the storage of automobiles when not in use run into it from the front which was its only entrance. This being the situation on January 22d, 1920, the plaintiff obtained from the defendant a policy of insurance in the sum of $2,000 “ on brick and frame buildings and additions thereto occupied as a repair shop and public garage and situate Nos. 358, 360 Elk St., Buffalo, N. Y.” The policy contained a provision that the insurer should not be liable for a greater proportion of any loss or damage to the property described therein than the sum of eighty per cent of the cash value of said property at the time of such loss shall happen. Subsequently a fire occurred. The value of the addition was then found by the appraisers to be $4,000 and the value of the brick and wood structure $2,800. The appraisers also found 'that the damage caused by the fire was. $1,845.75, the whole loss having occurred in the original building. Under these circumstances the question before us is as to the property covered by the policy issued. Is the property described therein both buildings or only one? The amount of the plaintiff’s recovery depends upon the answer. The jury was permitted “ to say what the fair intentions of the parties were as to what was covered ” by the policy. They found a verdict for the plaintiff for $1,735.12. The judgment entered upon the verdict has been affirmed. *337 As a basis for this finding various circumstances were alleged. The policy in question was a renewal of a former policy which, concededly, covered simply the original building. The renewal was issued without any further negotiations or statements. It was a fair amount of insurance on the original building considering its value. The fire risk on the addition was slight. The concrete structure was so much larger than the original building and so much more valuable that it could not be considered an addition. Evidence as to the circumstances surrounding the execution of a contract may be given, where its terms are ambiguous. To discover the meaning of the parties we may place ourselves, as far as possible, in their situation when they executed the instrument; Where, however, the writing is complete in itself, where it is clear and unambiguous, where there is no substantial dispute as to the application of the terms of the contract to its subject, then there is nothing upon which the jury should be asked to give a decision. In such a situation the court is to interpret the writing. “ We are restricted, therefore, to the interpretation of the language used, and proof of intention is only admissible when, in cases of ambiguity, proof of intention enables us to discover what the language means.” (Wharton on Evidence, sec. 937, 946; Trustees of Southampton v. Jessup, 173 N. Y. 84; House v. Walch, 144 N. Y. 418; Lossing v. Cushman, 195 N. Y. 386.) Here there was no dispute as to the facts. There was a brick and wood building. Attached to it was a concrete addition. Both" were used as “ a repair shop and public garage.” The language of the policy was clear. It covered both. (Gertner v. Glens Falls Ins. Co., 233 N. Y. 568; Maisel v. Fire Assn. of Phila., 59 App. Div. 461.) No evidence showing an intention at variance with that expressed was admissible. No question of fact was presented. *338 At the close of the case the defendant moved for a direction of a verdict against it for $714.56. This is the whole amount which the plaintiff is entitled to receive under the eighty per cent clause quoted. That motion should, therefore, have been granted. The judgment of the Appellate Division and of the Trial Term should be modified by reducing the judgment in favor of the plaintiff to $714.56, and interest thereon from April 20, 1921, and as so modified affirmed, with costs to the appellant in all courts. Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin and Crane, JJ., concur. Judgment accordingly.