84 N.Y.S. 1020 | N.Y. Sup. Ct. | 1903
This action is brought by the plaintiff as surviving partner of the firm of Wood & Tolmie against the defendant upon an employer’s liability policy issued June 15, 1895, under which, among other things, the defendant agreed to indemnify the assured against liability for damages on account of fatal or nonfatal injury accidentally suffered by any employee or employees of the assured; and, further, by a rider attached to and forming part of the said policy, against liability of the assured to workmen employed by other contractors and to the public, arising out of personal injuries caused by the assured or by the assured’s own workmen, “but not caused bv a contractor’s or sub-contractor’s workmen.” On November 2, 1895, the assured entered into a contract with the city of New York for the construction of a public overlook in Oorlears Hook Park. By that agreement the assured undertook to keep the place “properly guarded for the prevention of accidents and at night to put up and keep suitable and sufficient lights.” They further agreed to “ indemnify and save harmless (the city) against and from all suits and actions of every name and description brought against it and all costs and damages to which it may be put by reason or on account of any injuries or damages to the person or property of another by or from the said contractors, their servants or agents, in the construction of said work or by or in consequence of any negligence in guarding the same, or of any improper material used in its construction, or by or on account of any act or omission' on the part of the said parties of the second part, or their agents.” It was further agreed under said agreement that the city might retain from moneys due to the contractor such sums as might be deemed necessary by its commissioners “ until all suits or claims for damages as aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of said commissioners.” On the 6th of November, 1895, the assured entered into a contract with M. Kane & Son, under which the latter agreed to do all the excavating, grading, etc., necessary to complete the building known as “ Overlook,” Oorlears Hook Park, on or before the 19th day of November, 1895. In that
Judgment for defendant, with costs.