95 F. 109 | 2d Cir. | 1899
This action is founded upon a policy identical in terms with that considered in the case of Rogers v. Ætna Ins. Co., 95 Fed. 103, and was brought to recover for the same loss. The facts are .the same in both cases, except in respect to the time of bringing the’ action, and the defenses are the same. In the action brought by libelant against the Ætna Insurance Company, the Home Insurance Company was made a co-defendant. October 28, 1898, both companies interposed the objection of an improper joinder of parties defendant. Thereupon the libelant elected to proceed in that action against the Ætna Insurance Company, and in November, 1898, brought the present action against the Home Insurance Company. The case thus presents the question whether, an action having been brought by the assured against the insurance company within 12 months from the date of the loss according to our' construction of the meaning of the policy, the condition of the policy reading, “all claims under this policy shall be void, unless prosecuted by suit at law within twelve months from the date of the loss,” defeats the present action. The condition differs from those in the adjudged cases cited for the appellant, where it was held that the bringing of an action within the year, which failed, did not satisfy
LACOMBE, Circuit Judge, concurs.