
    Wasil Katzovitch, Appellant, v. Fidelity Phoenix Fire Insurance Company, Respondent.
   Appeal from an order of the Special Term and a judgment entered pursuant thereto in the office of the clerk of Ulster county on March 14, 1938, dismissing the complaint on the merits. On November 18, 1935, plaintiff brought an action on an insurance policy issued to him by the defendant, to recover a loss caused by fire on November 1, 1934. The defendant answered, denying material allegations, and interposing defenses, one of which was that the action was brought after the period of limitation fixed by the policy, viz., one year. The defendant then moved for judgment under rule 113 of the Rules of Civil Practice. The plaintiff did not appear on the return day, but defaulted, and judgment on the merits was granted in favor of the defendant on May 7, 1936. On December 6, 1937, more than a year and a half later, the plaintiff brought this action to recover the same loss on the same policy. In this action plaintiff alleges in addition to the matters set forth in the former one, the facts that defendant’s attorney extended plaintiff’s time to bring this action, and by its conduct waived a violation of the provision of the policy against the giving of a chattel mortgage on the property insured, and then asks in the amended complaint herein a cancellation of the chattel mortgage given to a third person not a party to this action. Except damages for the fire loss, no other relief is sought. The Special Term granted an order and judgment dismissing the complaint on the ground that there was an existing judgment on the merits determining the same cause of action between the same parties. Judgment and order unanimously affirmed, with twenty-five dollars costs. Present — Hill, P. J., Rhodes, MeNamee, Crapser and Bliss, JJ.  