(dissenting). By the terms of the policy respondent insurance company, in consideration of the premium paid by appellant, who is a physician, agreed to indemnify him against loss and expense resulting from claims for damages on account of any malpractice, error or mistake committed or alleged to have been committed during the policy period. It is respondent’s claim that as the action brought against appellant was for breach of contract, it was thereby relieved from liability regardless of the evidence of error or mistake submitted in support of the alleged claim. With such contention, I do not agree.
Had respondent sought to exclude liability for actions upon breach of contract causing damage arising out of mistake or error *769it could have done so by expressing its intention clearly and unambiguously. The rule is well established that a contract of insurance prepared by an insurance company must be construed as favorably to the insured as its wording will permit. (Syracuse Malleable Iron Works v. Travelers Ins. Co., 182 App. Div. 742; affd., 230 N. Y. 532.) The language of the coverage clause should be interpreted to avoid a forfeiture of the policy unless it clearly appears that a forfeiture was intended. (Paskusz v. Philadelphia Casualty Co., 213 N. Y. 22.)
The complaint in the action brought by Hirsch, the patient, against the appellant, his physician, alleged that in violation of his contract to remove certain markings from the face of Hirsch, the appellant had performed various operations which resulted in extensive scars, discolorations and distortion of the mouth and face of Hirsch. The action resulted in a judgment for Hirsch entered upon a verdict of a jury after trial. Due to an error in the court’s charge the judgment upon appeal was reversed and a new trial was ordered. (Hirsch v. Safian, 257 App. Div. 212.) When upon the second trial the respondent insurance company refused to defend the physician, the latter settled the suit brought by Hirsch. To recover the sum paid by appellant plus reasonable counsel fees and disbursements, this action was brought.
It appears from the testimony offered by Hirsch upon the first trial in support of his cause of action that the alleged breach of contract was predicated upon a mistake or error made by appellant in treating him. In the circumstances it is clear that the claim for damages is one against which respondent indemnified appellant.-
The case of Sutherland v. Fidelity & Casualty Co. of New York (103 Wash. 583; 175 P. 187) is an authority directly in point. There, an indemnity clause almost identical with the one contained in the policy in this suit was before the court and the patient’s action against the physician had been brought to recover damages for breach of contract. The insurance company contended, as does the respondent here, that the insurance policy did not cover the claim upon which the suit for breach of contract was brought against the physician. Nevertheless, the court held that the failure on the part of the physician to remove all gall stones from the patient as agreed, having been due to error or mistake, the physician was entitled to recover against the insurance company upon the ground that this was a risk covered by the policy of insurance. The court said (at p. 586): “ The words malpractice, error and mistake, as used in this indemnity policy, do not mean necessarily the same thing. If they were so intended, it was an idle thing to insert more than the word malpractice. A physician may err or make a mistake *770Without being guilty of malpractice. This policy covers malpractice. It covers error, and it covers mistake in the practice of appellant's profession; and if liability flows from either, and he is required to pay damages on that account, we think it is plain that the policy here undertook to insure against such mistake or such error, as well as against malpractice.”
For the foregoing reasons the orders and the judgment in favor of respondent should be reversed and the motion for summary judgment in favor of respondent should be denied, and the order denying plaintiff’s motion for summary judgment should be reversed and summary judgment granted in favor of the plaintiff-appellant for the relief demanded in the complaint.
Judgment and orders affirmed, with costs.