
    The People, Pl’ff, v. American Steam-Boiler Insurance Company, Def't. In the Matter of Gendron Iron Wheel Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 18, 1895.)
    
    Insurance—Limitation of action.
    Where a policy of insurance against liability for injuries to third persons, provided that, in case the insured should be sued by a person injured, an action by the insured on the policy must be brought within six months from the termination of the action by the injured person, the termination of such action, where an appeal is taken from a judgment therein for plaintiff, is on the filing of the mandate of the appellate court, affirming such judgment, and not on the payment of such judgment.
    Appeal from a judgment, dismissing a claim against a corporation in proceedings for its dissolution.
    
      A. W. Gleason, for app’lt; J. 0. O' Oonor and G. M. Spier, for resp’t.
   Parker, J.

An affirmance of the judgment, upon the ground that the claim is barred bv the limitation contained in the policy, is required. That the claim was not presented within six months from the termination of the suit against the assured is too clear for questioning. It is only by attempting to read into the provision something which would not have occurred to either of the parties to the contract, but for the neglect to file a claim seasonably, that the claimant is able to present a question for consideration. Tiie American Steam-Boiler Insurance Company insured the claimant against loss or damage, by explosion or accident, of two steam boilers, the policy expressly including damages sustained by an employe and recovered by him against the assured. While the policy was in force, an explosion occurred, in which an employe was injured and other damage done. For the latiera claim was presented and paid. But the former was contested in the trial court, and on appeal, resulted in a judgment which was finally-affirmed, the order of affirmance being duly entered October 13, 1893. The policy provides that:

“ No suit or proceeding shall be brought to recover any sum, * * * unless commenced within one year from the date of the explosion dr accident, nor for loss arising from injury to person, * * * unless commenced within three years 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.”

If the suit of the employe terminated October 13, 1893, when the mandate of the circuit court was filed with the clerk of the court of common pleas of Lucas county this claim should have been presented within six months, or on or before April 13th. It was not presented until April 23d, ten days later. After October 13th, two events happened which the claimant seeks to make use of to save it from the natural result of its neglect. These events are: (1) The payment of the judgment by the claimant on October 28th; (2) the payment of the costs November 1st.

As to the first, the claim is that the assured had no cause of action until after it had paid the judgment, could not present a claim until then, and, therefore, had six months from the time its cause of action accrued within which to present it. If this position be well taken, then the limitation provided for by the contract was dependent upon the time of payment of the judgment, instead of upon the terminination of the suit. And as payment could be postponed by the assured for so long a period as it could arrange with its judgment creditor, the right to determine when the six-months period should begin to run would rest with the assured. But the language of the provision does not admit of such construction. It provides that the period of six months shall date from the termination of the suit, not from the date of payment. It was within the power of the assured, through a prompt payment of the judgment; to make both dates the same, and thus to secure, if desired, six months after the cause of action accrued within which to present its claim. But it had not the right to postpone the period by refusing to pay the judgment. The decisions to which the appellant calls our attention, such as Steen v. Insurance Co., 89 N. Y. 315, do not call for a different construction of the language employed in this contract than we have given to it. In Steen’s Case, it is true, the court held that the provision in the policy limiting the time for bringing an action to a “ term of twelve months next after the loss or damage shall occur was not barred until over fourteen months thereafter; but the reason assigned for the conclusion reached was that the company intended to give the insured a full period of twelve months, within any part of which he might commence his action, and having postponed the assured’s right to bring an action until sixty days after the receipt of the proof of loss by the company, it was apparent that it did not intend to include that period within the term of limitation. The court said:

“ The parties cannot be presumed to have suspended the remedy and provided for the running of the period of limitation during the same time.”

If this policy provided for a postponement of payment of the judgment by the assured after the termination of the suit against it, the Steen Gase would be in point, and controlling. As it is, it has no bearing whatever.

The second event relied on, to wit, the payment of costs on November 1st, is in the main answered by what we have said in relation to the payment of the judgment. Claimant’s counsel, in his brief, suggests that, as the costs constituted part of the recovery, the suit was not finally terminated until after they were taxed. Assuming this position to be well taken, the difficulty with its application to the facts contained in this record is that it nowhere appears that the costs were not taxed on the day the remittitur was entered. All the information we have relating to costs is found in three receipts, entered upon the appearance docket. The first receipt, dated October 28th, is for the judgment, “except the costs,” and authorizes the clerk to cancel the judgment of record. The second is dated November 1st, and acknowledges the receipt of clerk’s and notary fees from the sheriff, The third entry acknowledges the filing of receipts for witness fees on the 14th of November. The record, therefore, does not furnish a basis for the position the appellant suggests rather than urges.

The judgment should be affirmed, with costs.

All concur.  