Opinion
October 8, 1968
Order of Appellate Term, entered November 22, 1967, affirming a judgment of the Civil Court, entered June 29, 1966, unanimously reversed and a new trial ordered on the law and the facts, with costs in all courts to abide the event. Error there was in the Judge's charge when he asserted that a finding of "vandalism" under the policy could be made even though the property destroyed and for which recovery was sought was destroyed "in some manner without any wilful or malicious act" accentuating a right of recovery even if there was no willful or malicious intent. The policy specifically stated that term "vandalism and malicious mischief" as used therein was "restricted and includes only wilful malicious injury to or destruction of the described [insured] property." The requests to charge on this score, urged by defendant's attorney, were proper. Further, the terms of the policy being plain and unambiguous, strict construction against the carrier is not applicable. ( Protective Life Ins. Co. v. Hale, 230 Ala. 323; Rea v. Motors Ins. Corp., 48 N.M. 9; 29 Am. Jur., § 260, p. 644.) Lastly, on a new trial, the strictures and analysis of the evidence, as set forth in the dissenting opinion of Streit, J., (Appellate Term) should be heeded. The evidence before us is thin at best.
Concur — Steuer, J.P., Tilzer, McGivern and McNally, JJ.