(dissenting):
The action was brought to recover $100,000 oh defendant’s banker’s blanket bond issued to the plaintiffs. The plaintiffs claim that they suffered a loss within the meaning of the bond by reason of a highway robbery which was brought about by the collusion of one of their employees. At the time of the robbery the plaintiffs were making a delivery of Liberty coupon bonds valued at over $250,000; in fact the market value was $411,499.95.
The bond provides:
“ In consideration of the premium of $4,895, paid by Kean, Taylor & Company hereinafter referred to as the Insured, to the National Surety Company, hereinafter referred to as the Underwriter, * * * the Underwriter hereby undertakes and agrees to indemnify the Insured and hold it harmless from and against any loss, to an amount not exceeding $100,000, of money, currency, bullion, bonds, debentures, scrip, certificates, warrants, transfers, coupons, bills of exchange, promissory notes, checks or other similar securities, hereinafter referred to as property, in which the Insured has a pecuniary interest or for which it is legally liable, sustained by the Insured subsequent to noon of the date hereof and while this bond is in force and discovered by the Insured subsequent to noon of the date hereof and prior to the expiration of twelve months after the termination of this bond as provided in Condition 11:
“ (A) Through any dishonest act of any of the Employees, wherever committed, and whether committed directly or by collusion with others;
“ (B) Through robbery, burglary, theft, hold-up, destruction or misplacement, while the Property is within any of the Insured’s offices covered hereunder, whether effected with or without violence, or with or without negligence on the part of any of the Employees;
“ (C) Through robbery, hold-up or theft, by any person whomsoever, while the Property is in transit within twenty miles of any of the offices covered hereunder and in the custody of any of the Employees, or through negligence on the part of any of the Employees having custody of the Property while in transit as aforesaid.
“ The foregoing agreement is subject to the following conditions and limitations: * * *.
*754“ This bond does not cover any loss resulting from any of the hazards- specified in Paragraph ‘ C ’ in respect to United States Government Coupons Bonds, or United States Government certificates of indebtedness, or cash, unless such property shall be in transit under the following conditions:
“ (1) Where the par value of such property is in the sum of Fifteen Thousand Dollars ($15,000) or less it shall be in the custody of a partner or regular employee of the Insured.
“ (2) Where the par value of such property is greater than the sum of Fifteen Thousand Dollars ($15,000) and not more than the sum of Two Hundred and Fifty Thousand Dollars ($250,000) it shall be in the custody of a partner or regular employee of the Insured, who shall be continuously accompanied by a guard of twenty-four (24) years of age or more; provided, however, that if the partner or regular employee is twenty-four (24) years of age or more, the guard may be under the age of twenty-four (24) but not under twenty-one (21).
“ (3) Where the par value of such property is in excess of the sum of Two Hundred and Fifty Thousand Dollars ($250,000) it shall be in the custody of a partner or regular employee of the Insured, who shall be continuously accompanied by two guards of twenty-four (24) years of age or more; provided, however, that if the partner or regular employee is twenty-four (24) years of age or more the guards may be under the age of twenty-four (24) but not under twenty-one (21).”
There is no doubt that information was given by an employee of the plaintiffs, DiGregario, which resulted in the robbery. Four men met Young, who was in charge of the delivery of the bonds, and Cohen, the eighteen-year-old messenger who was with him, before they reached the place of delivery, hammered them with the butts of revolvers, knocked them down, a shot was fired, the bonds were taken from them with force and violence, and have never been recovered.
It seems to me that where there is a general provision in a bond or policy of insurance, followed by a specific subsequent provision, that specific provision governs. Special protection was required in the transfer of these Liberty coupon bonds by reason of their peculiar character, their-quick negotiability, title passing by delivery. The bond given by the defendant specifically provided that such-securities, in the amount shown here, or cash, should be in the custody of a partner or regular employee continuously accompanied by two guards of twenty-four years of age or more, provided, however, if the partner or employee is twenty-four years of age or more the guards may be under the age of twenty-four, but notunder *755twenty-one. In this case the employee was over the age of twenty-four, but instead of two guards, there was only one, and that one was under the age of twenty-one. They were not armed, they were held up and the robbery was perpetrated upon them. I do not see how it is possible to escape from the particular provisions applicable to the transfer of the securities here in question. These provisions were as much a part of the contract as any of the other requirements. It is impossible to say that if the specific requirements of the policy or bond had been complied with the robbery would have been accomplished.
In Smith v. Fidelity & Deposit Co. (98 N. J. Law, 534; 120 Atl. 322) the Court of Errors and Appeals of New Jersey said: “ The law will not make a better contract for the parties than they themselves have seen fit to enter into, or alter it for the benefit of one party and to the detriment of the other. The judicial function of a court of law is to enforce a contract as it is written. * * * These rules are applicable to policies of burglary insurance, so is the rule the entire policy in all its parts must be considered to the end that each clause shall have some effect. The object and purpose of the policy was burglary insurance. The policy by its terms provided that an armed watchman was to be employed within the premises. It is conceded, that a provision for the employment of an armed watchman was material to, if not an essential part of the risk (Axe v. Fidelity, &c., Co. of New York, 239 Pa. St. 569), and that a failure to comply therewith prevents a recovery on the policy.”
This court on several occasions has attempted to construe insurance policies in favor of the insured as we thought the fair intendment of the policies warranted. But the Court of Appeals differed from us in their construction. (See Houlihan v. Preferred Accident Ins. Co., 127 App. Div. 630; revd., 196 N. Y. 337; Rosenthal v. American Bonding Co., 143 App. Div. 362; revd., 207 N. Y. 162. See, also, Hanna v. Commercial Travelers Mutual Accident Assn., 204 App. Div. 258; affd., 236 N. Y. 571.) With these cases in mind, I am of the opinion that the plaintiffs, concededly not having observed the clear and detailed requirements of the policy as to how the specific property, namely, United States coupon bonds, should be guarded in transit, cannot recover. I, therefore, vote to reverse the judgment appealed from and dismiss the complaint.
Merrell, J., concurs.
Judgment affirmed, with costs.