I would affirm and hold for the plaintiff.
The plaintiff is a wholesaler of merchandise sold to, among others, Saks Fifth Avenue. On September 28 and 29, 1979, the plaintiff prepared five different orders for Saks, and a trucker picked up the shipments at five different times on those two days and brought them to a central terminal, where they were loaded on one truck for delivery to Saks. However, before delivery, the truck was hijacked.
The insurance policy originally provided as follows: “This company shall not be liable hereunder for more than $20,000.00 in any one shipment, but not exceeding $40,000.00 in any loss” (italics added). This clause was amended prior to the theft to raise the amounts to $60,000 and $60,000 respectively.
There can be no doubt that there were five separate shipments, but the question is whether there was one loss or five losses.
If there are five losses, then the recovery should be, as the court below found in this nonjury trial, in the amount of $229,351. Otherwise, the recovery would be, as the majority now holds, $60,000.
The five shipments varied from values of $21,000 through $88,000 to make the total of the judgment at Trial Term. As was said many years ago by Cardozo, J., insurance policies should be construed according to the “reasonable expectation and purpose of the ordinary business man when making an ordinary business contract.” (Bird v St. Paul Fire & Mar. Ins. Co., 224 NY 47, 51.)
It cannot be said that the provision involved is so clear that there could be no confusion as to its meaning. (Kratzenstein v Western Assur. Co. of City of Toronto, 116 NY 54, 59.)
*24However, with the modification that provides for recovery of $60,000 on any one shipment and $60,000 also for any one loss, it would seem that with five shipments there could be five losses.
In any event, it should be construed against the insurer, which did not define the difference with more particularity. (Janneck v Metropolitan Life Ins. Co., 162 NY 574.)
Birns, Sullivan and Markewich, JJ., concur with Lu-piano, J.; Kupferman, J. P., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on May 13, 1981, modified, on the law, to the extent of reducing the amount of the award to $60,000 and, as so modified the judgment is affirmed. Appellant shall recover of respondent $75 costs and disbursements of this appeal.