
    Frances E. Cooper, Resp’t, v. The United States Mutual Accident Association of the City of New York, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Insurance (Accident) — Limitation.
    A policy of accident insurance required action to be begun within “ one year from, the time of the alleged accidental injury.” Held, that the words ‘“the time of the alleged injury” meant when the proofs are accepted and the claim in a condition to be sued and that the beneficiary had twelve months to bring suit after the right of action was complete.
    Appeal from judgment in favor of plaintiff.
    Action on a policy of accident insurance issued to Theodore H. Cooper and payable to plaintiff. The policy provided for the payment of $5,000 in case said Theodore H. Cooper should die during the continuance of his membership from an injury inflicted by violent, external and accidental means and within ninety days from such injury. It also provided that no suit should be brought “ unless the same is commenced within one year from the time of the alleged accidental injury.” .
    Said Theodore H. Cooper received an accidental injury effected by violent, external means December 10, 1887, which resulted in his death January 2, 1888. This action was commenced December 29, 1888.
    Defendant moved for a dismissal of the complaint on the ground that the action was barred by the limitation in the certificate because not commenced within one year from the time of the injury, which was denied.
    
      William Bro. Smith,, for app’lt; Lewis B. Carr, for resp’t
   Pratt, J.

The only point urged against the recovery is that the action was not begun within one year from the time the injury was inflicted that caused the death.

The policy requires the action to be begun within “ one year from the time of the alleged accidental injury.”

Defendant claims that the time began to run on December 10th, when the accident happened.

Plaintiff argues that the time had not begun to ran on January 2d, when death ensued, nor until the proofs were completed and right of action complete. The action was begun December 29 th, less than a year after the death, but more than a year after the accident.

In answer to the contention of. defendant the plaintiff points out that, if it be acceded to, cases might well arise where the death not occurring for nearly ninety days after the accident, and ninety days additional being allowed defendants after the proofs were made satisfactory to them before an action could be maintained, it would be easy for defendants, by raising objections to the proofs, to entirely deprive plaintiffs from having any time within which an action could be brought.

The clause upon which the defense depends is confused and its meaning is perhaps uncertain. But the court will seek to find a meaning that will be reasonable and adequately protect the rights of both parties.

However it may have been with defendant, it is quite evident the insured could not have understood his rights to depend absolutely upon the good will of the defendant. He must have so interpreted the contract as to allow a reasonable time in which suit Could be brought after the right of action was complete.

In similar cases the courts have made rulings which authorize ns to hold the time of the alleged injury “ to mean when the proofs are accepted and the claim is in a condition to be sued.” Ames v. Union Ins. Co., 14 N. Y., 253 ; Mayor v. Hamilton Fire Ins. Co., 39 id., 45; Hay v. Star Fire Ins. Co., 77 id, 235; Steen v. Niagara Fire Ins. Co., 89 id, 315, 323.

This is in accordance with the familiar rule that where language is ambiguous it will be construed so as to avoid a forfeiture. Post v. Weil, 115 N. Y., 371, 375; 26 N. Y. State Rep., 131; Jacobs v. Spalding, 71 Wis., 190.

So, where a party to a contract seeks to destroy its obligation by reason of the breach of a condition, the terms of the contract must be cleár and explicit in his favor. Clinton v. Hope Ins. Co., 45 N. Y., 464; Morse v. Buff. F. & M. Ins. Co., 30 Wis., 540.

We think the authorities require us to hold that the plaintiff had twelve months to bring the suit after the right of action was complete.

It follows that the judgment must be affirmed, with costs.

Dykmah, J., concurs.  