Opinion
February 14, 1966
Appeal from an order of the Supreme Court at Special Term, Albany County, which denied plaintiff's motion for summary judgment. The defendants cross-appeal from the court's denial of their motion for sumary judgment. In this action to establish the appellant's right to possession of a house trailer sold to the defendants by plaintiff's assignor on June 4, 1964 appellant contends that Arthur La Palme having died shortly after said sale, the defendant widow failed to pay the regular monthly installments in January, 1965 or thereafter. Appellant repossessed the trailer in March, 1965. Mrs. La Palme urges that the sales contract provided for life insurance on her husband to secure the payments to the appellant. The contract contained nine separate categories of insurance with a box and a space for a premium price after each. Four of the boxes were checked and each was followed by a premium price. As to the life insurance here in issue, the box was not checked but the word "FREE" was typed in. Appellant argues that to be included the life insurance box had to be checked. It appears to us that the omission of the check renders the insurance item ambiguous and the intention of the parties must be ascertained. A question of fact is, therefore, presented which may be resolved only upon a trial (see Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456; Lachs v. Fidelity Cas. Co., 306 N.Y. 357). Order affirmed, with costs to abide the event. Gibson, P.J., Herlihy, Reynolds and Hamm, JJ., concur.