88 N.Y.S. 717 | N.Y. App. Div. | 1904
Lead Opinion
On the 2d of Hovember, 1895, one Bobert Wood and Mur do Tolmie, composing the firm of Wood & Tolmie, entered into acon- ■ tract with the city of Hew York to build for it a public overlook in Corlears Hook Park and agreed that during the performance of the work they would place proper guards around the same and at night keep suitable and sufficient lights for the prevention of accidents, and would indemnify the city against any and all liability or damage which it might sustain by reason of their negligence. A few days later they entered into a contract with M. Kane & Son, by which the latter agreed to do all the excavating and furnish all the materials necessary for the erection of the building, and also “to be responsiblé for any accident caused to persons or property through inattention, * * * defective materials or the carelessness or neglect of * * * workmen while in the performance of this contract.” Wood & Tolmie, prior to entering into the contract with the city, obtained from the defendant a policy of indemnity insurance, by which the defendant agreed to indemnify them in the aggregate sum of $10,000, and to any one person in the sum of $1,500, for a ^period of one year against liability for' damages on account of fatal or non-fatal injuries accidentally suffered by any of their employees, and by an indorsement annexed to and forming a part of the policy the indemnity was extended so as to cover their liability to workmen employed by other contractors and the public arising out of personal injuries caused by them or their workmen, “ but not caused by a subcontractor or sub-contractor’s workmen.” On the 19th of Hovember, 1895, one Me Gann fell into an unguarded excavation, which- had been made for said building, and sustained
I am of the opinion that the judgment should be affirmed. The plaintiff failed to prove a material fact which rendered the defendant liable under its policy. The policy did not indemnify Wood & Tolmie against personal injuries caused by a sub-contractor or a subcontractor’s workmen, and before a recovery could be had it was necessary to prove that the injury to McGann was “ caused by the assured or by the assured’s own workmen ” and not by M. Kane & Son or their workmen. The fact that such proof had to be made was appreciated by the pleader who drew the complaint, because it is there alleged that the injury to McGann “.was not caused by a sub-contractor or sub-contractor’s workmen, but it was claimed * * * to have been caused by the negligence of the said Wood & Tolmie and their workmen and employees.” The evidence satisfactorily established that the defendant had notice of, and was afforded, an opportunity to defend the faction brought by McGann against the city. The judgment roll in that action, therefore, is conclusive evidence against it of the defect which caused the injury, the injured party’s freedom from negligence and the amount recovered (Mayor, etc., v. Brady, 151 N. Y. 611; Carleton v. Lombard, Ayres & Co., 149 id. 137; Oceanic Steam Navigation Co. (Ltd.) v. Campania Trans. Espanola, 144 id. 663), but it does not establish, nor was any evidence offered from which the jury could find, whether the defect which caused the injury was due to the- negligence of Wood .& Tolmie or to the negligence of M. Kane & Son. The plaintiff having failed to show that the same was caused by the former instead of. the latter, the court could not do otherwise than dismiss the complaint or direct a verdict for the defendant.
Thus it was held in Wilkinson v. First National Fire Ins. Co. (72 N. Y. 499), where a policy of insurance contained a provision that no suit for the recovery of any claim thereunder should be sustained unless commenced within twelve months after loss or damage, that an action commenced after the expiration of the twelve months would not be maintained; that an injunction restraining the insurance company from paying and the insured from receiving any money on account of the loss of the insured
This case was followed in Arthur v. Homestead Fire Ins. Co. (78 N. Y. 462). There an action was-brought upon a fire insurance policy which contained a limitation clause of one year, and the plaintiff’s recovery was reversed upon the ground that the action, having been commenced after the time prescribed in the policy, was too late.
It was also followed in the recent case of Sullivan v. Prudential Ins. Co. (172 N. Y. 482), where it was held that an action could not be maintained upon a policy of life insurance, inasmuch as it had not been commenced within the time provided in the policy.
The same rule was applied by this court in People v. American Steam Boiler Ins. Co. (10 App. Div. 9).
In the case now before us the defendant’s policy provided, as We ■ have already seen, that an action could not be maintained upon it after the expiration of the period within which an action for damages on account of the injuries or death might be brought — which was three years — unless at the expiration of that period there was a suit arising out of such accident pending against the assured. There was no such action pending at the expiration of three years, and, therefore, by express provision of the policy, the present action having been thereafter brought could not be maintained.
■ Other, errors are alleged, but the conclusion thus reached renders it unnecessary to pass upon them.
The judgment and order are fight and should be affirmed, with costs.
Patterson, O’Brien and Laughlin, JJ., concurred; Ingraham, J., dissented.
Dissenting Opinion
I dissent, as I think the judgment recovered against the city was binding upon the plaintiffs by reason of the obligation assumed by the plaintiffs to protect the work so as to avoid such an accident as was occasioned to McGrann who obtained the judgment against the city and that the failure of the plaintiffs to protect the work while in charge of a sub-contractor was the cause of the liability to the city, and consequently was a liability of the'plaintiffs' and covered by
Judgment and order affirmed, with costs.