I dissent. The issue in this case is whether damages to plaintiffs’ broadloom carpeting, tapestry and furniture, caused by carpet beetles, came within the exclusionary provisions of an insurance policy which exclude from coverage damage to personal property caused by “ deterioration, moth, vermin and inherent vice ”. The burden of proving that the insurer was not liable was on defendant who was urging that the loss fell within the terms of the exclusion clause. I agree with the holding by the Justice at nisi prius that the word “vermin”, in the policy sub judice, does not include carpet beetles. Had the insurer intended to exclude damages caused by all insects and household pests such a limitation could easily have been inserted in the policy. Instead the unscientific term ‘ ‘ vermin ’ ’ was used. At the trial two entomologists, one called by each side, demonstrated by their testimony that even among initiated scientists there is disagreement as to the connotations of the word ‘ ‘ vermin ’ ’. Moreover, standard and authoritative dictionaries differ in their definitions of the term. Under insurance law, where a colloquial, unscientific term is used in an exclusionary clause of a policy, its meaning must be one which is ascribed “ by the average man in applying for insurance and reading the language of the policy at the time it was written ” (McGrail v. Equitable Life Assur. Soc., 292 N. Y. 419, 424). By that test, “ vermin ” would not include carpet beetles. It has been held that squirrels are not vermin (North British & Mercantile Ins. Co. v. Mercer, 90 Ga. App. 143, affd. 211 Ga. 161), and that “vermin” includes “bedbugs, cockroaches, croton water bugs and red ants ” (Pomeroy v. Tyler, 9 N. Y. St. Rep. 514. 515). So too, crickets were not considered vermin in Ben Har Holding Corp. v. Fox (147 Misc. 300). But no *346case has gone so far as to class carpet beetles as vermin. Since the term ‘ ‘ vermin ’ ’ has an equivocal meaning, the ambiguity must be construed against the insurance carrier. As already indicated a simple clause excluding damage from insects and household pests could fully protect the carrier if that were the intent of the insurer. Exclusion of a loss sustained by an insured should not have to he predicated upon niceties of entomological distinctions but should rest upon clear and unambiguous language. We have no such clarity here. I would therefore affirm the judgment in favor of plaintiffs.
Botein, P. J., Bkeitbl, Rabin and Steubr, JJ., concur in Per Curiam opinion; Valente, J., dissents and votes to affirm, in opinion.
Judgment in favor of plaintiffs reversed on the law and the facts and the complaint dismissed, with costs to the appellant.