App. Div.] First Department, November, 1911. followed the definition of "old" and "new" customers, under which Annie Scheinberg would be classed as an "old" customer. As to such customers the policy provided as follows: "TT. Subject to the terms and conditions of the attached Bond and this rider, old customers of the Indemnified possessing a capital and credit rating other than as specified in the above schedule or who are rated entirely blank as to both capital and credit or whose names are not printed in the designated Mercantile Agency book shall be covered for goods shipped during the term of the attached bond, for an amount not exceeding the highest indebtedness such customer owed to the Indemnified at one time, for goods shipped by the Indemnified to such customer within 18 months prior to shipping the first item of the goods wholly or partly included in the account upon which the loss was incurred, not exceeding however, the amount paid upon such highest indebtedness during said period." Annie Scheinberg's rating by the designated mercantile agency during the period covered by the policy was 4." This the trial court has found to be both a capital and credit rating, but that finding was clearly inadvertent, as appears by reference to a "Key to ratings" read in evidence, from which it appears that such a rating as was given to Annie Scheinberg relates to credit only, and not to capital. Annie Scheinberg, therefore, during the period covered by the policy, was an "old" customer, having a rating not included in the list of ratings included in Schedule A, and was rated only as to credit, and not as to capital. An indebtedness from her is not, therefore, covered by the letter of the contract, which limits defendant's liability as to old customers to those who 66 ...... (1) possess a rating embraced in Schedule A; or, failing that, (2) possess a capital and credit rating other than those contained in the list; or (3) are rated entirely blank as to both capital and credit; or (4) whose names are not printed in the designated mercantile agency book. It will be seen that none of these classes embraces a customer like Annie Scheinberg whose name was printed in the agency book, and who had a rating therein as to credit, but not as to capital. The respondents urge, in support of the judgment. First Department, November, 1911. [Vol. 146. that any ambiguity in the terms of the contract must be resolved most favorably to the insured. Such is no doubt the accepted rule (Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307), but there is no room for its application here, since the language of the contract is entirely unambiguous. It is also urged that the word "or" should be substituted for "and" in the description of persons whose debts are insured against, hereinbefore designated, (2), so that the policy will be read so as to cover indebtedness owing from old customers possessing "a capital or credit rating other than " one of those contained in the list of ratings included in Schedule A. There are undoubtedly cases in which the courts, in order to carry into effect the evident intention of the parties, will substitute "or" for "and" or vice versa, but there must be something in the context or elsewhere to clearly indicate what the intention of the parties was. Otherwise to make such a change would be to make a new contract for the parties. We find nothing in the context, or in any other circumstances to suggest that the parties intended to make any other contract than that which is indicated by the language which they used. That language clearly excludes the indebtedness of Annie Scheinberg from the protection of the policy, and, in so far as the judgment appealed from rests upon a claim for indemnity against her indebtedness, it is erroneous. The policy provides only for the payment of losses exceeding what is termed an "initial" loss of $750. Since Annie Scheinberg's indebtedness, as we consider, is not covered by the policy, there remains only the claim upon the indebtedness of the Sanders Manufacturing Company, which is much less than the stipulated initial loss. It cannot, therefore, be recovered. This result necessitates a reversal of the judgment, and as the essential facts cannot be changed upon a new trial, the complaint will be dismissed. The judgment should be reversed and the complaint dismissed, with costs to the appellant in this court and the court below. INGRAHAM, P. J., LAUGHLIN, CLARKE and DOWLING, JJ., concurred. Judgment reversed and complaint dismissed, with costs to appellant in this court and in the court below. App. Div.] First Department, November, 1911. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GUISEPPE CASTALDO, Appellant. First Department, November 3, 1911. Crime assault, first degree - indictment misstatement as to person defendant intended to kill — immaterial variance between indictment and proof- amendment — technical errors not affecting substantial rights. An indictment drawn in the common-law form charging the crimes of assault in the first and second degree examined, and held, to warrant a conviction of the defendant of the crime as defined by the provisions of the statute. As the Penal Law, section 240 (Penal Code, § 217), provides that one who with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, assaults another with a loaded firearm, etc., is guilty of assault in the first degree, and as section 281 of the Code of Criminal Procedure provides that when an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material, a defendant may be convicted of assault in the first degree under an indictment charging an assault upon P., with intent to kill P., although the proof shows an intent to kill G. As the variance between the indictment and the proof consisted merely of an erroneous description of the person whom the defendant intended to kill, it might have been summarily cured by an amendment at trial. Moreover, it is immaterial that such amendment was not in fact made as under section 542 of the Code of Criminal Procedure, the court must give judgment without regard to technical errors or defects not affecting the substantial rights of the parties. APPEAL by the defendant, Guiseppe Castaldo, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 6th day of May, 1910, convicting him of the crime of assault in the first degree under an indictment found on the 17th day of January, 1910. The indictment is as follows: First Department, November, 1911. [Vol. 146. "The Grand Jury of the County of New York, by this indictment, accuse Guiseppe Castaldo, of the Crime of Assault in the First Degree, committed as follows: "The said Guiseppe Castaldo, late of the Borough of Manhattan, of The City of New York, in the County of New York aforesaid, on the fourteenth day of July, in the year of our Lord one thousand nine hundred nine, at the Borough and County aforesaid, with force and arms, in and upon one Pasquale Alloca, in the peace of the said People then and there being, feloniously did make an assault, and to, at and against him, the said Pasquale Alloca, a certain pistol then and there loaded and charged with gunpowder and one leaden bullet, which said pistol the said Guiseppe Castaldo, in his right hand then and there had and held, the same being a deathly and dangerous weapon, wilfully and feloniously did then and there shoot off and discharge, with intent him, the said Pasquale Alloca, thereby then and there feloniously and wilfully to kill, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York, and their dignity. 66 SECOND COUNT: "And the Grand Jury aforesaid, by this indictment, further accuse the said Guiseppe Castaldo of the Crime of Assault in the Second Degree, committed as follows: "The said Guiseppe Castaldo, late of the Borough and County aforesaid, on the day and in the year aforesaid, at the Borough and County aforesaid, with force and arms, in and upon the said Pasquale Alloca, in the peace of the said People then and there being, feloniously did wilfully and wrongfully make an assault, and to, at and against him, the said Pasquale Alloca, a certain pistol then and there charged and loaded with gunpowder and one leaden bullet, which said pistol the said Guiseppe Castaldo, in his right hand then and there had and held, the same being a weapon and an instrument likely to produce grievous bodily harm, then and there feloniously did wilfully and wrongfully shoot off and discharge against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity." App. Div.] First Department, November, 1911. Isidor J. Kresel, for the appellant. Robert C. Taylor, for the respondent. SCOTT, J.: This is an appeal from a judgment of the Court of General Sessions, New York county, convicting the defendant of the crime of assault in the first degree. The indictment is in the common-law form and charges that the defendant "with force and arms, in and upon one Pasquale Alloca, in the peace of the said People then and there being, feloniously did make an assault, and to, at and against him, the said Pasquale Alloca, a certain pistol then and there loaded and charged with gunpowder and one leaden bullet, which said pistol the said Guiseppe Castaldo, in his right hand then and there had and held, the same being a deathly and dangerous weapon, wilfully and feloniously did then and there shoot off and discharge, with intent him, the said Pasquale Alloca, thereby then and there feloniously and wilfully to kill, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York, and their dignity." Under such an indictment it seems that the defendant could properly be convicted of the crime charged by proof of the crime as defined by the provisions of the Penal Law. (People v. Enoch, 13 Wend. 159; People v. Darragh, 141 App. Div. 408; affd., 203 N. Y. 527, without opinion.) The evidence was such that the jury might have found that although the defendant did in fact shoot Pasquale Alloca he did so with intent to kill one Giovanni Alloca, and the appeal calls in question the ruling of the trial court to the effect that if "the defendant intended to kill the brother [Giovanni], but struck the complaining witness [Pasquale] with the intention of killing the brother [Giovanni] it would be assault in the first degree" as charged in the indictment. This the defendant claims to be erroneous for two reasons, first, because it authorizes a conviction for a crime not charged in the indictment, and second, because it authorizes the jury to dispense with the element of intent made necessary by the statute under which the APP. DIV.-- VOL. CXLVI. 49 |