On the 16th of June, 1930, the plaintiff recovered a judgment in negligence against one Arthur Aldrich in the Supreme Court, Monroe county, N.Y., for the sum of sixty-five hundred dollars. Aldrich was covered by liability insurance in the sum of five thousand dollars, the policy having been issued by the United States Casualty Company. On appeal from the judgment to the Appellate Division, an undertaking was given to stay execution as well as to perfect the appeal. The appeal resulted in an affirmance of the recovery and the insurance company, pursuant to section 109 of the Insurance Law (Cons. Laws, ch. 28), paid the full amount of its indemnity policy, $5,585.32, which included the costs of the action. Aldrich was insolvent and did not pay.
The plaintiff, not satisfied with this substantial payment in behalf of an impecunious defendant, now seeks to recover the balance of the judgment, fifteen hundred dollars, out of the undertaking on appeal upon the theory that the defendant not only insured Aldrich for five thousand dollars but on appeal agreed to pay the whole judgment, or the part remaining unpaid. The undertaking on appeal must, therefore, be read to see if this defendant assumed any such additional burden.
After the recitals we have the obligation: "Now, therefore, the United States Casualty Company * * * does hereby * * * undertake that the appellant will pay all costs * * * not exceeding Five Hundred Dollars, and does also undertake, in the sum of Five Thousand Dollars, that if the judgment * * * is *Page 329 affirmed * * * the appellant will pay the sum recovered * * * in all not to exceed said sum of Five Thousand Dollars."
The appellant is Aldrich, and the costs have been paid. Aldrich, by his agent, has also paid five thousand dollars on the judgment. What more does the bond require? The company undertakes that the appellant will pay the judgment, not to exceed five thousand dollars. This the appellant has done, he has paid the costs and five thousand dollars and all virtue has departed from the instrument; its obligation has been fulfilled.
Some of us were not satisfied with the decision of this court in Shapiro v. Equitable Casualty Surety Co. (256 N.Y. 341), and the writer was one of the three dissenting judges; but now that the case has become law, we should abide by it and not draw such fine distinctions as to indicate our desire to depart from its authority whenever a little loophole permits an escape. Rules for the guidance of insurance companies in drawing policies or undertakings should be simple and plain, and when once published in the reports, should not fluctuate with slight changes in punctuation or phraseology.
The appeal undertaking in the Shapiro case read: "does hereby undertake that the appellant will pay such judgments * * * not exceeding, however, the sum of Twenty-five Hundred Dollars * * * and * * * if the judgments * * * are affirmed * * * the appellant will pay the sum recovered * * * up to the amount mentioned herein."
Twenty-five hundred dollars having been paid, that ended the matter, and the bonding company was not held liable for anything more, although the judgment was in a greater amount.
Now in this case we have almost the exact wording. To repeat for comparison: "does also undertake * * * that if the judgment * * * is affirmed * * * the appellant will pay the sum recovered * * * in all not to exceed said sum of Five thousand dollars."
A logomachist might be able to find a distinction *Page 330 between these two bonds, but not the ordinary insurance man. After all is said and done, courts deal with human affairs and not in speculations; their decisions should not be refined beyond the point of practical application; in other words, agreements should be given their plain, ordinary meaning.
The judgment below should be reversed, and the complaint dismissed, with costs.
POUND, Ch. J., KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur with LEHMAN, J.; CRANE, J., dissents in opinion.
Judgment affirmed.