I would affirm. Under the terms of the policy issued to George A. Hamid & Son, a partnership, it covered bodily injury liability in connection with “ all operations which are necessary or incidental ” to “ theatrical companies, travelling entertainers, musicians — all employees ’ ’. And, specifically, under the terms thereof, George A. Hamid, was covered for his acts as a “ partner ’ ’ of the insured firm ‘ ‘ while acting within the scope of his duties as such ’ ’. Here, the testimony, without dispute, was that George A. Hamid’s participation in the Hamid-Morton Circus was not on his own but was in furtherance of the business of the said firm George A. Hamid & Son. His interest in the circus, held in the injured’s suit to be on a partnership or joint venture basis with Morton, was acquired and held for the benefit of and as a part of the business of said Hamid & Son firm. Whatever George A. Hamid did in connection with the circus was in furtherance of the affairs of the firm, and as a partner thereof and agent therefor. Therefore, if the policy means what it says, it did cover Hamid while acting as a“ partner * * * within the scope of his duties as such ’ ’ in connection with the Hamid-Morton Circus.
It is true that the policy recites that the business of the insured firm, George A. Hamid & Son, is that of “ theatrical agent ”. Such recital, however, is merely by way of representation and would not control over the provisions of the body of the policy. In any event, it clearly appears that the activities of George A. Hamid in connection with the circus were in fact in pursuance of the general theatrical booking business of George A. Hamid & Son.
*112Further, if in the reading of the policy as a whole, there is any ambiguity as to coverage, the same is to be resolved in favor of plaintiffs. “It is well-settled that if a policy of insurance is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the policy holder and against the company ”, (Hartol Prods. Corp. v. Prudential Ins. Co., 290 N. Y. 44, 49.)
If there be any question as to whether or not the policy covered the operations of the insured firm and Hamid as partner therein in connection with the Hamid-Morton Circus, that question must be deemed to be resolved by the defendant company’s acceptance of premiums upon a base which included such operations. “ Although the amount of the premium cannot affect the plain terms of the contract, it is a fact to be taken into consideration in construing doubtful clauses in a policy. ” (1 Couch, Insurance [2d ed.], § 15:51, p. 742.) The testimony here was that it was the practice, in the matter of the computation of premiums on the policy in suit and on previous policies, to include in the premium base the receipts from the circus, considering them in the nature of commissions. The defendant did not dispute this testimony. Having received and retained premiums on the basis of the inclusion of the income from the operations of Hamid in the particular Hamid-Morton Circus, and not offering to return the portion of the same based on the circus income, the defendant company is estopped from claiming that the policy did not cover such operations.
Finally, it is to be noted that the plaintiffs, in their complaint, allege due performance of conditions precedent. The defendant, by its answer, admitted this allegation. Therefore, the defendant must be held to have admitted performance of conditions precedent to its liability for payment of expenses in defending against the injured’s claim, including the item of printing bills and stenographic minutes. Consequently, as concluded by the learned trial court, such item was properly to be included in the judgment.
Valente and McNally, JJ., concur with Steuer, J.; Eager, J., dissents and votes to affirm in opinion, in which Rabin, J. P., concurs.
Judgment vacated, on the law and on the facts, and a verdict directed in favor of the defendant, with costs to the appellant.