(concurring). Apparently the parties have agreed that the policy issued to respondent O’Connor, pursuant to the Plan, should be construed as though the provisions of the Plan were embodied in it, and appellant concedes that, if an insurer were to be permitted to cancel a policy issued under the Plan, without cause, in accordance with the cancellation clause contained in the policy, it would defeat the very purpose which the legislation providing for the Plan was designed to accomplish. Appellant asserts, nevertheless, that the provisions of the Plan which permit cancellation of the policy only with respect to future obligations must be construed as leaving unaffected its common-law right to avoid the policy for a material misrepresentation of fact in the application, and in such a case to declare it void ab initia. I am in accord with the view that the Plan, read in the light of its declared purposes, does not permit such a cancellation of a policy written pursuant to its provisions.
One of the stated purposes of the Plan is to make automobile liability insurance available to those who have attempted, but have been unable, to procure it, and a duty is imposed on the carrier to which a risk is assigned to afford such insurance except under circumstances specified therein. Additional charges may be made, over and above the rates ordinarily charged for such insurance, in cases in which the applicant has been involved in an accident resulting in damage or injury, has been convicted of specified offenses, or has been required to furnish proof of financial responsibility, and cancellation of the policy is permitted, but only under the circumstances specified in the cancellation provisions of the Plan. Notice of the facts in support of a cancellation is required to be given 10 days prior to the effective date thereof, to the manager of the Plan and the Superintendent of Insurance, and such cancellation may be reviewed on appeal by the governing committee administering
*534the Plan, and the Superintendent of Insurance, whose order is subject to review pursuant to article 78 of the Civil Practice Act. Cancellation is effective on the date specified in the notice, and coverage ceases on such date.
Whatever may have been the intention of the insurers who participated in the formation of the Plan, the provisions to which they agreed do not appear to be consistent with the right which appellant now claims, to annul the policy issued to respondent O’Connor ab initia. If the Plan is to be considered part of the policy, the question to be determined is not what the technical meaning of the word “ cancel ” may be as used by insurers, in providing for the termination of insurance coverage. The question is whether the average man in applying for insurance under the Plan would ascribe to the language of the cancellation provisions the meaning which appellant here urges, and would differentiate between cancellation, as meaning the termination of the insurance coverage on a future date stated in a cancellation notice, and rescission, as meaning annulment ab initia. I do not believe that he would. In determining the meaning of the language used in the cancellation provisions of the Plan and how such provisions would be understood by the average man, we may consider the accepted meanings of the words “ cancel ” and “ rescind ”. To cancel is “To annul or destroy; to revoke or recall ”, and to rescind is “To abrogate; annul; cancel”. (Webster’s New Int. Dictionary [2d ed.]; cf. Matter of Otterbein v. Babor & Comeau Co., 272 N. Y. 149.) According not only to dictionary definitions but also to accepted usage in the legal profession, the words “ cancellation ” and “ rescission ” are frequently regarded as interchangeable. (Cf. Hurst v. Trow Print. & Bookbinding Co., 2 Misc. 361, affd. 142 N. Y. 637; New York Life Ins. Co. v. Miller, 17 Misc 2d 532; see 12 C. J. S., Cancellation of Instruments, § 5, p. 945.) It is immaterial that, among insurers, the word ‘ ‘ cancel ’ ’ may have a more restricted meaning, ñor is it enough that an applicant for insurance might construe it according to the meaning urged by appellant, provided it can reasonably be construed otherwise. To sustain the construction urged, the insurer has the burden of establishing not only that the words used are susceptible of that construction, but also that it is the only construction that can fairly be placed on them. (Bronx Sav. Bank v. Weigandt, 1 N Y 2d 545; Hartol Prods. Corp. v. Prudential Ins. Co., 290 N. Y. 44, 49.) In my opinion, the Special Term properly construed the Plan as prohibiting the termination of insurance coverage provided by policies issued thereunder, or the annulment of such policies except iti accordance with its *535cancellation provisions, and I believe the average applicant for insurance would so construe the language used. Moreover, such appears to be the intent of the Plan, when all of its provisions are considered. It does not seem probable or reasonable that it was intended that an attempted termination of insurance coverage by a cancellation notice effective after 10 days should be subject to review by appeal and that an insurer should nevertheless be free of supervision and control by the governing committee administering the Plan and the Superintendent of Insurance, if it terminates the coverage by declaring the policy void ab initia (cf. Matter of Aioss v. Sardo, 223 App. Div. 201, affd. 249 N. Y. 270).
The judgment appealed from should be affirmed.