
    Murdo Tolmie, as Sole Surviving Partner of the Firm of Wood & Tolmie, Appellant, v. The Fidelity and Casualty Company of New York, Respondent.
    
      Indemnity bond—given to city contractors ag ainst personal injuries caused by them or their workmen, “ but not caused by a sub-contractor or sub-contractor’s workmen ’’ — proof required in an action thereon, where the contractors have sublet part of the work, that the injuries in question were caused by such contractors “or their workmen ” — the Statute of Limitations in the policy applied.
    
    A contract between the' firm, of Wood & Tolmie and the city of New York for the construction of a public improvement in that city provided that Wood & Tolmie would indemnify the city against any and all liability which it might. sustain by reason of their negligence. Wood & Tolmie sublet a part of the work to M. Kane & Son.
    Prior to entering into the contract with the city Wood & Tolmie had obtained from the Fidelity and Casualty Company of New York a policy of insurance, indemnifying them against liability to the public for damages arising out of personal injuries caused by them or their workmen, " but not caused by a subcontractor or sub-contractor’s workmen.”
    Subsequently one McG-ann, who had sustained injuries by falling into an unguarded excavation, made in the execution of the contract, brought an action against the city to recover damages. The Fidelity and Casualty Company was notified of the commencement of the action and was afforded an opportunity to defend the same.
    McGann recovered a judgment against the city. The judgment was paid by the city in the first instance, but was ultimately, paid by Wood & Tolmie. Wood & Tolmie then brought an action against the Fidelity and Casualty Company to recover upon the policy of indemnity, and upon the trial introduced in evidence the judgment roll in the case of McGann against the city, but offered no proof dehors the record as tp whether the accident was caused by the negligence of Wood & Tolmie or their sub-contractor, M. Kane & Son.
    
      Held, that the court properly directed a verdict in favor of the defendant, as Wood & Tolmie had neglected to prove that McGann’s injuries were caused by the assured or by the assured’s workmen, and not by M. Kane & Son or their workmen;
    That the judgment roll in the McGann action was conclusive evidence against the Fidelity and Casualty Company of the defect which caused the injury, the injured party’s freedom from contributory negligence and the amount recovered, but did not establish whether the defect which caused the injury was due to the negligence of Wood & Tolmie or to the negligence of M. Kane & Son;
    That, as McGann’s right of action to recover damages for his injuries was governed by the three years’ Statute of Limitations, and as, at the expiration of such three years, no action was pending against Wood & Tolmie to recover damages on account of the accident, Wood & Tolmie were precluded from maintaining an action on the policy by a.clause contained therein which provided: “No action shall lie against the company after the expiration of the period within which an action for damages on account of the given injuries or death might be brought by such claimant or his representatives against the assured unless, at the expiration of said period, there is a suit arising out of such accident pending against the assured, in which case an action may be brought in respect to the claim involved in such action against the company by the assured within thirty days after final judgment is rendered in such suit, and not later.”
    Ingraham, J., dissented.
    Appeal by the plaintiff, Murdo Tolmie, as sole surviving partner of the firm of Wood & Tolmie, from a judgment of the Supreme Court in favor of the. defendant, entered in the office of the clerk of the county- of Hew York on the 16th day of July, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 23d day of July, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      L. Laflin Kellogg, for the appellant.
    
      Edwin A. Jones, for the respondent.
   McLaughlin, J.:

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 injuries for which he claimed damages against the city, and subsequently brought an action to enforce the same. The defendant was notified by Wood & Tolmie of McCann’s injury, in accordance with the terms of the policy, and we think a fair consideration of all the evidence shows that it had notice of the commencement of the action by McCann against the city, and that it was requested, or at least had an opportunity, to defend the same. Its attorney did take charge of the trial,-though he-testified, and the jury found, that in doing so he acted for the city and not for this defendant. It is, however, in view of the conclusion at which we have arrived, of no importance in which capacity he acted. After the commencement of the McCann action certain moneys of Wood & Tolmie were retained under a clause in their contract with the city for the purpose of indemnifying the latter against any sum which it might become liable to pay in that action, and for the purpose of releasing such funds, on the 28th of March, 1896, they and the City Trust, Safe Deposit and Surety Company of Philadelphia, gave a bond to the city which provided that in consideration of the city’s paying the moneys due to the plaintiff they would indemnify and save it harmless against “ all loss; damage, costs, charges and expenses ” to which it might be put or which might be recovered against it .by reason of the McCann claim and action brought by him, whether groundless or otherwise,” and would pay and satisfy all -judgments-which might be recovered by McCann by reason thereof. On the 14th of May, 1898, McCann recovered a judgment against the city for $1,727.35, and after the same had been paid the city brought an action against Wood & Tolmie and the City Trust, Safe Deposit and Surety Company of Philadelphia upon their undertaking. A recovery was had, each of the defendants offering judgment for the amount claimed. After this- judgment had been paid .to the city, - this plaintiff, as the surviving member of the firm of Wood. & Tolmie, brought this action to recover from the defendant the sum of $1,500 upon its policy df indemnity. At the trial the plaintiff introduced in evidence the judgment roll in the case of McCann against the city, but offered no proof dehors the record as to whether the accident was caused bj the negligence of Wood & Tolmie or their sub-contractor, M. Kane & Son. At the conclusion of the trial two questions were submitted to the jury: (1) Whether the attorney who defended the action of McGann against the city did so for the city or this defendant ; and (2) whether such attorney had notice of the commencement of the action by the city against this plaintiff ? In answer to these' questions the jury found (1) that such attorney acted solely for the city; and' (2) that he did have notice of the commencement of the action by the city against this plaintiff. The court thereuptin — both parties having moved for the direction of a verdict — directed a verdict in favor of the defendant, to which plaintiff excepted, and from the judgment thereafter entered in accordance therewith, plaintiff has appealed.

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.

I am also of the opinion that the judgment should he affirmed because the action was not brought within the time specified in the policy. The policy provided that “No action shall lie against the company after the expiration of the period within which an action for damages on account of the given injuries or death might be brought by such claimant or his representatives against the assured unless, at the expiration of said period, there is a suit arising out of such accident pending against the assured, in which case an action may be brought in respect to the claim involved in such action against the company by the assured within thirty days after final judgment is rendered in such suit, and not later,” ■ McGann was injured on the 19th of November, 1895, and an action to recover damages therefor had to be brought within three years thereafter. (Code Civ. Proc. § 383, subd. 5.) No action.was pending against the plaintiff in this action at the expiration of such time, nor was any action ever brought by McG-ann or any one else against this plaintiff on a cause of action “ arising out of such accident ” for damages on account of the “ given injuries.” The only'action brought against the plaintiff was that brought by the city, which arose out of a bond given by him and the City Trust, Safe Deposit and Surety Company of Philadelphia, and that was commenced on or subsequent to January 4, 1899. The parties had a right to prescribe a shorter limitation for the enforcement of an action under the policy than that provided by. statute. Such right is recognized in section 414 of the Code of Civil Procedure, where it is provided that the general provisions of chapter 4 of said Code shall not apply to “ a case where a different limitation is specially prescribed by law or a shorter limitation is prescribed by the written contract of the parties.” (Id. subd. 1.)

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 property until the further order of the court was not a waiver of that provision of the policy.

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.

Ingraham, J. (dissenting):

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 the policy of insurance. Assuming that as between the plaintiffs and their sub-contractors it was the sub-contractors’ duty to protect this work as between the city and the plaintiffs, it was the plaintiffs’ duty and a duty which they were bound to perform. Having failed to perform that duty and as a result of that failure a liability having been imposed upon them, it was expressly within the terms of the defendant’s policy of insurance as a liability arising out of personal injuries caused by ” them. When the action was commenced against the city, the city notified the plaintiffs of that action and that they must defend. The plaintiffs thereupon notified the defendant of the pendency of that action and of its obligations to defend it, and after that notice was received counsel for the defendant assisted in the defense of the action, and whatever the private understanding with the city’s representative was as between the plaintiffs and this defendant it was acting in pursuance of the obligation contained in the policy of insurance and a judgment against the city in that action of which the insurance company had due notice was a judgment which imposed a liability upon the plaintiffs and for which the defendant was liable. The fact that that judgment was based upon a neglect of these plaintiffs to perform their obligation under their contract with the city was an adjudication that the plaintiffs had failed to perform its contract with the city, and no other proof was required to establish the plaintiffs’ liability, and the plaintiffs’ liability having been established, the defendant’s liability followed' I think, therefore, the plaintiffs were entitled to a verdict. I also think the action was brought in time, as the action which was pending against the city and of which the plaintiffs had notice and which was being defended by the counsel for the defendant was a suit arising out of such accident pending against the assured ” within, the provisions of the policy.

Judgment and order affirmed, with costs.  