This case is similar in its facts to Davis v. Atlas Assurance Company, ante p. 232 just decided by this court; and the cases were tried together in the lower court. There is only one point of difference between the cases which requires notice. After the action had been commenced upon policy issued by the appellant in this case, it was dismissed upon plaintiff’s motion, and a new suit (the present one) instituted. Upon receiving notice of the intention of the plaintiff to dismiss the first suit, counsel for the appellant served upon respondent’s attorneys a demand for an appraisement under the terms and conditions of the policy. This was nearly a year after the fire occurred, and, as already noticed, was subsequent to the commencement of suit upon the policy. We think that it came too late.
Upon the authority of Davis v. Atlas Assurance Company, supra, and for the reasons therein given, the judgment appealed from herein will be affirmed.