(dissenting).
I would reverse.
The issue is whether the plaintiff “relinquished possession” within the meaning of the products hazard exclusion.1 If so, the insurance company is not liable.
The fact that under New York law any ambiguity must be resolved in favor of the insured does not warrant the creation of doubt through a strained or hypertechnical construction of an otherwise plain and unambiguous contract provision. See Doyle v. Allstate Ins. Co., 1 N.Y.2d 439, 443, 136 N.E.2d 484, 487, 154 N.Y.S.2d 10, 13 (1956) ; Abrams v. Great American Ins. Co., 269 N.Y. 90, 92, 199 N.E. 15, 16 (1935); 1 Couch, Insurance § 15:85 (2d ed. Anderson 1959).
In General Casualty Co. of America v. Azteca Films, Inc., 278 F.2d 161, 165 (9th Cir.), cert. denied, 364 U.S. 863, 81 S.Ct. 103, 5 L.Ed.2d 85 (1960), a case that my brethren concede is “virtually identical” with the case before us, the Ninth Circuit Court of Appeals framed the issue as we must: “whether the *281clause under examination- — because of the word ‘possession’ — is ambiguous.” The court properly concluded:
“it would seem that the word ‘possession’ as here used would convey to the ordinary mind, the layman, the idea of actual possession. The concept of constructive possession is the sort of concept that would more likely occur- to a lawyer. * * * If this [i. e., what the insured did] does not amount to relinquishment of possession, as the term would be understood by a layman, it is difficult to conceive what additional facts and circumstances would be required.” Id. at 168.
In the present case the majority seeks to distinguish the Azteca Films case on the ground that the “result was reached under California law.” But the crucial question is whether there is ambiguity, and California and New York law do not differ in this regard.
The rule in New York is that language in a contract of insurance must be given its “ordinary meaning, such as the average policy holder of ordinary intelligence” would attach to it. Abrams v. Great American, supra at 92, 199 N.E. at 16; see Lachs v. Fidelity & Casualty Co., 306 N.Y. 357, 364, 118 N.E.2d 555, 558 (1954). Compare, e. g., Trousdell v. Equitable Life Assur. Soc., 55 Cal.App.2d 74, 130 P.2d 173, 990 (1942). A court must determine whether there is “ambiguity from the standpoint of a layman, not from that of a lawyer.” 1 Couch op. cit. supra § 15:83 at 824. In Abrams v. Great American, supra, the claim of a policyholder, a commercial jeweler, that common words in an exclusion clause should be given a technical legal definition, was rejected because “common words in the policy as ‘theft,’ ‘dishonest,’ and ‘entrusted’ cannot be deemed to have been used as words of art with legalistic implications.” Id. at 92, 199 N.E. at 16.
Although Abrams was a commercial jeweler who had purchased a comprehensive policy insuring his business, the majority, still purporting to interpret New York law, limits the rule of Abrams and similar cases to “an airplane flight-insurance policy purchased by a passenger at an airport through a coin machine.” Then, relying on Tonkin v. California Ins. Co., 294 N.Y. 326, 329, 62 N.E.2d 215, 216, 160 A.L.R. 944 (1945), where the court looked at a policy through the eyes of an “ordinary businessman,” my brothers argue that such a businessman would be aware of the technical legal concept of “constructive possession.” But the New York Court of Appeals in Tonkin did not endow their “ordinary businessman” with the powers of a skilled attorney. In “applying this general principle” the court said:
“it is reasonable to suppose * * * that the fair meaning and use of the word ‘comprehensive’ included those damages which an ordinary individual would reasonably and naturally regard as incidental to or flowing from the hazard insured against.” (Emphasis added.) Id. at 329, 62 N.E.2d at 217.
In a later case, the Appellate Division made clear that:
“The courts have repeatedly held that the interpretation of a clause in a policy of insurance is to be determined by what it means to the ordinary businessman, not what it might convey on careful analysis to a trained lawyer.” Whiteside v. Ins. Co. of Pennsylvania, 274 App.Div. 36, 79 N.Y.S.2d 715, 717 (1st Dep’t 1948).
To a layman, whether businessman or housewife, possession means actual or physical control. There is no ambiguity here.
The majority concedes that “the insurer sought to limit the coverage of its policy at the point where the insured lost its power to control the product.” There can be no doubt that this point was reached.
. The policy reads:
“The term ‘products hazard’ means (1) the handling or use of, the existence of any condition in or a warranty of goods or products manufactured, sold, handled or distributed by the Name Insured, other than equipment rented to or located for use of others but not sold, if the accident occurs after the Insured has relinquished possession thereof to others and away from premises owned, rented or controlled by the Insured * *