
    Burton H. Halper, Appellant, v. Ætna Life Insurance Company of Hartford, Connecticut, Respondent.
    Supreme Court, Appellate Term, First Department,
    July 30, 1964.
    
      Leon Wasserman for appellant. Allen M. Taylor and John M. Percy for respondent.
   Judgment affirmed, with $25 costs. No opinion.

Hofstadter, J.

(dissenting). I dissent and vote to reverse the judgment and grant judgment in favor of plaintiff. Such meaning must be given to the terms used in a policy of insurance as would be ascribed to them u by the average man ” (McGrail v. Equitable Life Assur. Soc., 292 N. Y. 419, 424). In my opinion an average man would consider Fernclifl; Manor, here involved and held to be a hospital for mental patients for zoning purposes (Matter of Saich v. Balint, 9 Misc 2d 11), also a hospital under defendant’s group insurance certificate. A policy holder is not required to read his policy as if he were a psychiatrist (Shneiderman v. Metropolitan Cas. Co., 14 A D 2d 284, 287); any doubt in the construction to be adopted must be resolved against defendant. In every realistic sense Ferncliff is a hospital, and, absent clear and unmistakable terms excluding such a hospital (Sincoff v. Liberty Mut. Fire Ins. Co., 11 N Y 2d 386), and unless " that is the only construction that can fairly be placed thereon ” (Hartol Prods. Corp. v. Prudential Ins. Co., 290 N. Y. 44, 49), plaintiff is entitled to prevail.

Hecht and Tilzer, JJ., concur in decision; Hofstadter, J., dissents in opinion.

Judgment affirmed, with $25 costs.  