One who has property in his possession, custody or control as a bailee, who appropriates the same to his own use, steals such property and is guilty of larceny. (Penal Law, § 1290, subd. 2.) Section 1293-a of the Penal Law was enacted, I think, to obviate difficulties in making proof that the property was stolen where an automobile was taken by a person who ordinarily had some license or authority to take and use it, but who would on certain occasions *42take it for his own profit, use or purpose. The crime is the same as in the general definition of larceny, to wit, “ stealing.”
The defendant is a New York corporation. Presumptively it knew the existing law of this State on the subject of stealing when it wrote its policy and issued it to insure plaintiff against theft as that term was legally understood, in this State. The language used in the policy is “ theft, robbery or pilferage,” and the exceptions for the protection of the insurer are stated in definite language.
When a policy is written by an insurer and it has the choice of language in stating the contract, it must be held to the rule common in construing all contracts by which the terms thereof are construed strictly against the person whose language is used in expressing it. (Schumacher v. Great Eastern C. & I. Co., 197 N. Y. 58; Thompson v. Phenix Ins. Co., 136 U. S. 287; Bankers’ Mutual Casualty Co. v. State Bank, 150 Fed. Rep. 78.)
A thief is one who steals, and a theft is the act of stealing. (Webster’s New Int. Dict.) It is a wider term than larceny and includes other forms of wrongful deprivation of property of another. (Encyclopaedia Britannica.)
A person who without the consent of the owner takes and uses an automobile, steals the same and is guilty of larceny and shall be punished accordingly. (Penal Law, § 1293-a.)
The question submitted to the jury was whether Wilson, who had the car in his possession for the purpose of repairing it, took the car to test it or for a legitimate errand; or whether he took it for his own use and profit without lawful right. The jury found that the latter was his purpose and that he stole the car. If the intent with which he took it is material, the presumption of wrongful intent arises from the unlawful act itself and from the circumstances proved. (People v. Fish, 125 N. Y. 136.) When with a knowledge of all the facts one deliberately violates a positive law which he is presumed to know, he cannot be excused on the ground that he intended no wrong. (Wayman v. Commonwealth, 14 Bush [Ky.], 466; 16 C. J. 77.)
The plaintiff’s automobile was stolen. Such a theft was within the terms of the policy. Authorities from other jurisdictions construing similar policies are of little value, for the statutes defining larceny are different and there are no similar statutes in such States as the one here offended.