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BURTON H. HALPER, Appellant, v. AETNA LIFE INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Respondent

Judgment affirmed, with $25 costs. No opinion.

HOFSTADTER, J. (dissenting).

I dissent and vote to reverse the judgment and grant judgment in favor of plaintiff. Such meaning must be given to the terms used in a policy of insurance as would be ascribed to them "by the average man" ( McGrail v. Equitable Life Assur. Soc., 292 N.Y. 419, 424). In my opinion an average man would consider Ferncliff Manor, here involved and held to be a hospital for mental patients for zoning purposes ( Matter of Saich v. Balint, 9 Misc.2d 11), also a hospital under defendant's group insurance certificate. A policy holder is not required to read his policy as if he were a psychiatrist ( Shneiderman v. Metropolitan Cas. Co., 14 A.D.2d 284, 287); any doubt in the construction to be adopted must be resolved against defendant. In every realistic sense Ferncliff is a hospital, and, absent clear and unmistakable terms excluding such a hospital ( Sincoff v. Liberty Mut. Fire Ins. Co., 11 N.Y.2d 386), and unless "that is the only construction that can fairly be placed thereon" ( Hartol Prods. Corp. v. Prudential Ins. Co., 290 N.Y. 44, 49), plaintiff is entitled to prevail.

HECHT and TILZER, JJ., concur in decision; HOFSTADTER, J., dissents in opinion.

Judgment affirmed, with $25 costs.

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HALPER v. AETNA LIFE INS. CO
(Jul 30, 1964)