
    Frances E. Cooper, Resp’t, v. The United States Mutual Benefit Ass’n of the State of New York, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed April 19, 1892.)
    
    Insurance ^Accident)—Limitation.
    Where an accident insurance policy requires action to be begun “within one year from the time of the alleged accidental injury,” the beneficiary in case of the death of the insured must begin action within one year from said death, without regard to the time of the original injury;'that is, within one year from the time the right of action accrues.
    
      Appeal from a judgment of the general term, second department, affirming a judgment entered upon a verdict.
    
      William Bro. Smith, for app’lt; Lewis E. Carr, for resp’t.
   Haight, J.

This action was brought upon a certificate of insurance, issued by the defendant, to recover $5,000.

The defendant by its certificate undertook to insure Theodore-H. Cooper against personal bodily injury, and in case he should receive such injuries disabling him from transacting business pertaining to his occupation, to pay him certain amounts specifically named dependent upon the nature of his injuries, and in case death should result .from such injuries within ninety days the defendant agreed to pay to the plaintiff, as his wife, the sum of $5,000. The certificate contained the following: “Ho suit or proceeding at law or in equity shall be brought * * * to recover any sum under this insurance unless the same is commenced within one year from the time of the alleged accidental injury.”' Cooper received an accidental bodily injury on December 10r. 1887, which resulted in his death on January 2,1888.

This action was commenced on December 29, 1888, more than one year after the accident, but within one year of his death.

It is claimed that the action was not commenced within the time required by the provision of the certificate referred to.

It will be observed that provisions are made in the certificate for two different persons, who, upon the happening of the events-specified, may have a right of action against the association. One provision is'in favor of Cooper, who may recover during his lifetime the amounts provided for his disability resulting from the accidental injury received. The other is to his wife, which is for the injuries which she suffers by reason of his death resulting from such accident.

The accident received by Cooper did not injure the plaintiff, or give her a right of action until death ensued. So far as she is concerned, the infliction of the wound is but the beginning, and the death is the completion of the injury. Her suit must be “commenced within one year from the time of the alleged accidental injury.” In other words, within one year from the time of the injury to her, which was the death of her husband as the result of the accident As to Cooper, he suffered from the date of the wound. His right to indemnity dates from that event, and. it is possible that his right to maintain an action would not continue after the expiration of a year from that date.

But as to the plaintiff, it appears to us that the construction already indicated was intended and should be given to the certificate. As thus construed, the various clauses of the contract are rendered harmonious, and the different beneficiaries thereunder are given the same period of limitation within which to bring actions to-establish their claims. That is, within one year from the time-that their right of action accrued. This construction is in a measure sustained by the authorities.

In the case of Steen v. The Niagara Fire Insurance Company, 89 N. Y., 315, the policy of insurance required actions to be» brought within twelve months next after the “ loss or damage shall accrué.’’ In an action upon the policy it was held that the period of limitation prescribed did not commence to run until the loss became due and payable and the right to bring an action had accrued. And to the same effect are the cases of The Mayor, etc., v. The Hamilton Fire Insurance Company, 39 N. Y., 45, and Hay v. The Star Fire Insurance Company, 77 id., 235.

The case of King v The Watertown Fire Insurance Company, 47 Hun, 1, 14 St. Rep. 93, appears to us to be clearly distinguishable. In that case the policy provided that no suit or action •could be maintained unless commenced !l within twelve months next after the -fire shall have occurred.’' In that case it was held that the year within which the action must be brought commenced to run from the date on which the fire occurred, it so having been •expressly stipulated in the policy.

We consequently are of the opinion that the judgment should be affirmed, with costs.

All concur, except Vann, J.. not sitting. 
      
       Affirming 32 St. Rep., 725.
     