(dissenting). The contract of excess insurance to be interpreted is one between a corporate limited self-insurer and an insurance company. It expressly provides that interest on any “ settlement verdict or judgment ” shall be borne proportionately by the limited self-insurer and by the insurance company. The interest item in suit is by statute required to he added to the verdict, and, exactly as prescribed in the contract, the liability therefor is to be borne proportionately by the limited self-insurer. As a consequence, there is no need to resort to a canon of strict construction, or to section XIII of the contract, which is contradictory of any canon of strict construction.
For the same reason, Cleghorn v. Ocean Acc. & Guar. Corp. (244 N. Y. 166) is not applicable, because it involved a different contractual provision, namely, liability for interest from the date of judgment without reference to the verdict. Hence, both sides in this case rely on that case mistakenly. But if the Cleghorn case has any relevancy, it is noteworthy that the court did not allow the plaintiff there to recover interest from the date of the death to the date of judgment. Thus, the court, in holding the policy provision for interest and the statutory provision for interest independent of each other, excluded the “ damage interest ” from plaintiff’s recovery and not otherwise. Put another way, the court held that ‘ ‘ interest ’ ’ in the policy meant interest and only interest, while in the statute for purposes of entering judgment it was part of the ‘6 damage ’ ’, but that there was no connection between the two.
*378A comment, however, in the Gleghorn case in referring to the contract provision there is appropriate to the contract provision here, namely, that the provision ‘ ‘ would seem to be a perfectly simple statement ” (p. 167). It is only a subtle gloss, conceived and suggested by a noncontracting party, after litigation, which, if accepted, renders the contract provision in suit involved or difficult to construe.
Accordingly, I dissent and vote to affirm the order of Special Term granting summary judgment to defendant.
M. M. Frank, Valente and Stevens, JJ., concur with Babin, J; Breitel, J. P., dissents and votes to affirm in opinion.
Order reversed on the law with $20 costs and disbursements to the appellant; plaintiff’s motion for summary judgment is granted and the Clerk is directed to enter judgment in favor of plaintiff for the relief demanded in the complaint, with interest and costs.