
    The People of the State of New York, Plaintiff, v. The American Steam Boiler Insurance Company, Defendant. In the Matter of the Claim of Johnson & Johnson. Johnson & Johnson, Appellants; Henry S. Ward, as Receiver of The American Steam Boiler Insurance Company, Respondent.
    
      Accident policy — limitation of time for bringing suit — a claim for medical expenses and costs of suit falls within the limitation.
    
    The American Steam Boiler Insurance Company insured a corporation known as Johnson & Johnson against accidental personal injury and loss of human life for which they might be liable to their employees where the same was caused by boilers or machinery connected therewith. The policy, among other things, provided that no suit under the policy resulting from loss of life should be maintainable, unless it was commenced within three years from the date of the explosion or accident, and that in case a suit, instituted by a third party against the assured for personal injury or loss of life, was pending at the termination of the period of three years, a suit might be brought against the company within six months from the termination of that suit, and not later.
    An employee of Johnson & Johnson, who was injured in 1890, brought suit in 1891, and recovered judgment against Johnson & Johnson in 1892, and the amount thereof, as reduced by the Appellate Court, was paid by Johnson & Johnson in November, 1892. In March, 1894, Johnson & Johnson presented its claim to the receiver.
    
      Held, that as the claimant had delayed sixteen months after the matter was decided by the Appellate Court, the delay was fatal to its right to recover; That a part of the claim, based upon moneys disbursed for medical and surgical aid to the person injured, and for the expenses of defending the action, arose under the policy, and was, therefore, subject to the limitation of time which governed any action thereunder.
    Appeal by Johnson & Johnson from a judgment of the Supreme Court in favor of Henry S. Ward, as receiver of the American Steam Boiler Insurance Company, entered in the office of the clerk of the county of New York on the 13th day of February, 1896, upon an order of the Supreme Court, made at the New York Special Term, confirming the report of a referee and dismissing the appellants’ claim.
    
      William C. Wallace and Bert Hanson, for the appellants.
    
      J. C. O’ Conor and G. M. Speir, for the respondent.
   Patterson, J.

The claimant, Johnson & Johnson, a New Jersey corporation, held a policy of insurance issued by the American Steam Boiler Insurance Company. That company went into the hands of a receiver to whom the claim of Johnson & Johnson was presented. It was rejected; a reference was agreed to, and after a hearing the referee reported adversely to the claimant. From the judgment entered after confirmation of the report of the referee and dismissing the claim, with costs, this appeal was taken.

According to the verified statement of claim presented to the receiver, that claim consisted of a demand for payment of the amount of a judgment recovered in New Jersey by one Martin Cauley for injuries received by him while in the employment of Johnson & Johnson, and for moneys paid out and expended hy it for immediate medical aid rendered to Cauley at the time his injuries were received and for moneys expended in the defense of the Cauley action. These two items of expense are alleged in the statement to have been disbursements incurred at the. special instance and request of the insurance company, and appear ,to be counted on as constituting causes of action arising independently of the policy. That policy was issued to cover the year 1890, from the first of January. It contained, among other things, a clause insuring Johnson & Johnson against “ accidental personal injury and loss of human life, for which injury or loss of life the assured may be liable to his employees or to any other persons whomsoever, and which shall be caused by said boilers or any machinery of whatever kind, connected therewith or operated thereby.”

Cauley entered the service of Johnson & Johnson on May 26, 1890, and on the same day received serious injuries while operating a machine at which he was set to ivork. In July, 1891, by his guardian, he brought an action against Johnson & Johnson and recovered a judgment therein for $7,500, which judgment was entered in April, 1892. Johnson & Johnson appealed from such judgment, and in November, 1892, the Appellate Court in New Jersey reduced the judgment to $4,000 and affirmed it at that- sum, and the amount thereof was paid by Johnson & Johnson in November, 1892. No claim arising under or outside of the policy was presented by Johnson & Johnson until March, 1894; that is to say, four years after the accident happened and sixteen months after the final judgment in the Appellate Court was recovered and the amount thereof paid. Among the conditions of the policy, and forming part thereof, is the following: No suit or proceedings shall be brought to recover any sum, for loss of property arising under this Policy unless commenced within one year from the date of the explosion or accident, nor for loss arising from injury to person, or from loss of life, unless commenced within three years from from said date; * * * and in case a suit, instituted by a third party against the assured for personal injury or loss of life, be pending at the termination of said period of three years, a suit may be brought against the Company within six months from the termination of said suit, and not later.” That identical provision of the policy of the American Steam Boiler Insurance Company was construed by the General Term in The Matter of the O lairn of the Gendron Iron Wheel Go. (89 Hun, 456), and on a state of facts presenting the same question as that involved here with respect to the limitation contained in the policy; and it was there held that the period of six months, in which a suit may be brought as provided by the policy, dated from the termination of the suit.

The delay of the claimant in presenting the claim in this matter for sixteen months is fatal to its right to recover under the terms of the policy. This case is not distinguishable from that cited.

It is argued that the claimant was entitled to recover for the moneys disbursed for medical and surgical aid, and in the defense of the Cauley action, outside of the terms of the policy of insurance. It is sufficient to say upon that subject that the proofs submitted to the referee do not establish an independent contract, express or implied, to pay the assured for either of those items of expense. What transpired in the correspondence between the assured, the company, and the attorney of the company, and what was said between Mr. Van Cleef and the attorney for the company, is insufficient to make out an independent contract of the nature suggested. The policy provided for reimbursement to the assured for medical aid furnished under such circumstances, and also provided for the company undertaking the defense of an action brought against the assured, and the breach of the contract by the insurance company in these respects would furnish a claim arising under and not outside of the policy; for, by the terms of that policy, any outlay for immediate medical or surgical relief was to be' deemed part of the liability of the company under the policy, and its obligation to defend the suit is also one assumed by the policy, and any action for a breach of that contract would be necessarily one arising under and connected with the liability it assumed in the policy, and would, therefore, come under the limitation of time fixed for the.beginning of a suit against the company.

The judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  