
    Herman Fallert, as Administrator, etc., of Herman William Fallert, Deceased, Respondent, v. Massachusetts Bonding and Insurance Company, Appellant, Impleaded with City of New York, Defendant.
    First Department,
    May 5, 1916.
    Negligence •— death caused by blasting — suit against surety of contractor—two-year Statute of Limitations applies.
    Although a contractor engaged in blasting in the city of New York has given to said city a bond as security against loss or damage to persons or property resulting from explosives, payment under said bond to be for the benefit of any person suffering" damage, the administrator of a person who was killed by a blast of dynamite cannot recover against the surety where the action was not commenced within two years after the death as required by section 1902 of the Code of Civil Procedure.
    As the action to recover for such death did not exist at common-law, it can be maintained only where there is a strict compliance with the statute creating it.
    A recovery for such death after the expiration of two years cannot be justified on the theory that the action is against the surety on a sealed instrument as to which the twenty years Statute of Limitations applies.
    Davis, J., dissented.
    Appeal by the defendant, Massachusetts Bonding and Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of May, 1915, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 5th day of November, 1915, denying appellant’s motion for a new trial made upon the minutes.
    
      John R. Halsey, for the appellant.
    
      Saul Gordon, for the respondent.
   McLaughlin, J.:

On the 11th of September, 1909, one Guiri was conducting blasting operations on premises in the city of New York. The plaintiff’s intestate, a boy about eleven years of age, while passing along one of the public streets adjacent to the premises referred to, was struck by a stone thrown by a blast and sustained injuries from which he died shortly thereafter. Prior to commencing such blasting operations, Guiri, in accordance with an ordinance of the municipal explosives commission, obtained a blaster’s license. In order to obtain it he had to first file a bond with the fire commissioner “ conditioned for the payment of any loss, damage or injury resulting to persons or property from explosions.” This bond was in the penal sum of $5,000, executed by himself and the appellant, the Massachusetts Bonding and Insurance Company. The condition of the bond was that Guiri and the insurance company “shall well and truly pay to the said Oity of New York, its certain attorneys, successors or assigns, any loss, damage or injury resulting to persons or property from the use and keeping of explosives, and strictly observe an ordinance, and the regulations made thereunder, to regulate the sale, use and transportation of explosives in The City of New York * * * under and by virtue of such permit as aforesaid, such payment to be for the benefit of any and all persons suffering damage or loss thereby * *

On the 30th of January, 1912, this action was brought upon the bond given by the insurance company to recover the damages alleged to have been sustained by reason of the death of plaintiff’s intestate. The answer set up, among other defenses, that the action was not commenced within two years after the death of the decedent. At the trial there was substantially no dispute between the parties as to the facts involved, except those relating to the amount of damages alleged to have been sustained by the plaintiff. At the close of the evidence the insurance company moved for the direction of a verdict in its favor on the ground, among others, that the plaintiff’s claim was barred by the Statute of Limitations, the action not having been brought within two years from the death of the decedent as required by section 1902 of the Code of Civil Procedure. The motion was denied and an exception taken, the trial court holding that the insurance company was liable upon its bond, but it was a question for the jury to determine the amount of such liability. The jury subsequently rendered a verdict in favor of plaintiff for $4,000, and from the judgment entered thereon the insurance company appeals.

I am of the opinion the judgment should be reversed. The cause of action sought to be enforced is one which did not exist at common law. It was created by statute which gives to the plaintiff, as the representative of the deceased whose death was caused by the negligence of Guiri, the right to maintain the action to recover the damage sustained by the next of kin. The statute which gives the right to maintain the action does so only upon condition that it be commenced within two years after the decedent’s death. (Code Oiv. Proc. § 1902.) This action was not commenced within that time. That fact was not disputed, and for that reason, as it seems to me, defendant’s motion for the direction, of a verdict in its favor should have been granted.

But it is urged by the respondent that the action is not brought to recover under the statute; that it is an action upon a bond, which is under seal, and, therefore, the plaintiff had, under section 381 of the Code of Civil Procedure, twenty years within which to bring the action. It is, in one sense, an action upon a bond; but it is something more; it is to recover from the insurance company by reason of its bond a liability created solely by statute. Except for the statute plaintiff would not be entitled to recover anything, because he has not been injured in his person or property. The time within which an action upon a bond under seal may be brought is qualified and limited by the statute, which gives the only right to maintain an action to recover damages for the death of the decedent. The only “loss, damage or injury’’the plaintiff has sustained is that growing out of the death of intestate, and it is only in his representative capacity that he can maintain an action to recover, and in order to do that he had to commence the action within two years from the death of the decedent. This action was not so commenced, and my conclusion, therefore, is that it cannot be maintained.

It follows, therefore, that the judgment appealed from must be reversed, with costs, and inasmuch as the facts cannot be changed, the complaint is dismissed, with costs.

Clarke, P. J., Scott and Smith, JJ., concurred; Davis, J., dissented.

Judgment reversed, with costs, and complaint dismissed, with costs.  