This is an appeal from a judgment against a surety company upon a policy of insurance against loss by burglary. There is no *370dispute as to the facts, the only question involved in the appeal being whether or not the loss which the plaintiffs suffered was covered by the terms of the policy. The plaintiffs were merchants dealing at wholesale in silk goods. The circumstances attending the loss were as follows: On June 17, 1907, and while this policy was in full force, two of the employees of plaintiffs entered the store at about seven-thirty in the morning to prepare for business. They opened the door of the loft with a key (there being no other fastening than a lock) and shut the door after entering, but did not lock it, and it was left so that by turning the handle of the door attached to the lock the tongue would slide and the door could be opened. A few minutes later Kennedy, a former employee of plaintiffs, accompanied by his younger brother, threw open the door of said store and entered, with a pistol in each hand, and threatened and beat one of the clerks, and then bound and gagged both of them and robbed the store of silks valued at about $1,050. The police and the. defendant company were at once notified and an examination was made; the burglars were afterwards arrested but the goods were never recovered.
A verdict was directed in favor of plaintiffs for the value of the stolen property and interest.
The policy sued upon undertook to insure the plaintiffs “ For direct loss by burglary of any of the merchandise described in the schedule hereinafter contained and stated to be insured hereunder occasioned by its felonious abstraction from the store, warehouse, office, loft or rooms, hereinafter called the premises and actually occupied by the Assured in the manner set forth in the Schedule, by any person or persons who have made forcible and violent entrance upon the premises, or exit therefrom, of which force and violence there shall be visible evidence.”
Included in the terms of the policy were certain clauses denominated “ special agreements,” the first of which read as follows : “ (A) The company shall not be liable : (1) Unless there are visible marks upon the premises of the actual force and violence used in making entry into the said premises or exit therefrom.” Naturally, since it had been necessary to use no force to effect an entrance beyond that required to turn the doorknob, there were no visible marks upon the premises of actual force or violence used in making *371entry, and the claim of the appellant is that it did not undertake to insure against loss by such a crime as the evidence shows was committed in this case. If the policy had undertaken in general terms to insure the plaintiffs against loss by “ burglary,” without limiting or defining the meaning of that word as used in the policy, there would be no doubt of the defendant’s liability, for the crime as described by the witnesses undoubtedly amounted to a burglary in this State. (Penal Code, §§ 496-504; now Penal Law, §§ 400-404.) That, however, is not what the defendant insured against. Its undertaking was to indemnify plaintiffs against a loss by burglary committed by persons who not only have made “forcible and violent” entrance upon or exit from the premises, but of whose force and violence there shall be “ visible evidence.”
The words “ force ” and “ violence ” are words in common use and of perfectly well-understood meaning. It is said that the conduct of the thieves was forcible and violent towards the clerks whom they found in the store, but that this is not what was contemplated by the policy is made clear by the special agreement, which relieves defendant from responsibility unless the visible marks of force and violence are to be found “ upon the premises.” The respondents urge that the provision in the special agreement is a mere rule of evidence. It is undoubtedly that, but it also serves to define the nature of the force and violence which must accompany the crime in order to bring the loss within the policy.
The respondents rely upon a line of well-known cases which have arisen under life and accident insurance policies wherein it has been stipulated that they should not extend to death or disability of which there should be no external or visible signs. (Gale v. Mutual Aid & Accident Assn., 66 Hun, 600; Root v. London Guarantee & Accident Co., 92 App. Div. 578; Menneiley v. Employers' Liability Assurance Co., 148 N. Y. 596; Paul v. Travelers’ Ins. Co., 112 id. 472; Mutual Accident Assn. v. Barry, 131 U. S. 100.) In all of these cases it was considered that the condition was merely a rule of evidence, designed to protect the insurer against fraud, and when it clearly appeared, by evidence other than the external or visible signs, that the death or injury was one of those against which it was intended to insure, the courts have found the condition satisfied by almost anything, however *372slight, that could by any possibility be construed as an external or visible sign. The present case differs from those in two respects. In the first place there is not the slightest evidence of any visible marks at all upon the premises resulting from actual force and violence, and in the second place, as already pointed out, the fact that the burglary must be accompanied by force and violence in order to be covered by the insurance, characterizes the nature of the loss against which the plaintiffs were insured. In my opinion the plaintiffs failed to show that they had suffered loss from the kind o-f burglary which the policy insured against, and, therefore, the judgment should be reversed and a new trial granted, with cost to appellant to abide the event.
Ingraham, P. J., concurred.
Judgment and order affirmed, with costs.