
    William Beyer, Appellant, v. International Aluminum Company, Respondent, Impleaded with Ætna Life Insurance Company.
    Fourth Department,
    November 14, 1906.
    Insurance — insurance of master against liability for injury to servant — when no action by servant lies against the insurer.
    When an employer’s liability insurance contract provides that no action shall lie against the insurer under the policy “unless it shall be brought by. tbe assured,” the provision is binding, and an employee of the insured who has recovered damages for personal injuries has no action against the insurance company on the policy.
    Appeal by the plaintiff, William Beyer, from a judgment of the Supreme Court in favor of the defendant, the International Aluminum Company, entered in the office of the clerk of the county of Erie on the 9th day of July, 1906, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining a demurrer to the complaint and dismissing the said complaint.
    
      Joseph P. Schattner and James Harmon, for the appellant.
    
      Charles A. Pooley and H. E. Rourke, for the respondent.
   Williams, J.:

The judgment should be affirmed, with costs, with leave to plead over-on payment of costs of this appeal and of the demurrer.

The action was brought to recover the amount of a judgment theretofore recovered against the aluminum company for damages for personal injuries. Plaintiff was an employee of the aluminum company, met with an accident, was seriously injured-, and the judgment was recovered on the ground that the negligence of the aluminum company caused the accident and injuries. The aluminum company had become insolvent, and plaintiff could not collect the judgment. By this action he seeks to recover the amount of the judgrnent from the insurance company, because it had insured the aluminum company against loss or expense arising from claims upon the assured for damages for injuries suffered by its employees in the operation of its business. The policy was annexed to and made apart of • the complaint, and provided that the insurance was made subject to cevtain- conditions, among which was one in substance that if any suit should be brought against the assured, it should turn the papers therein over to the insurance company, which should defend the same, if it saw'fit, at its own expense, and tlie insured should aid in such defense in any way it could, and should in .no way interfere with such defense, and the further condition that “No action shall lie against the (Insurance) Company to recover for any loss or expense under this policy unless it shall be brought by the assured for loss- or expense actually sustained and paid in money by him after actual trial of the issue, nor unless such action is brought within ninety'days after payment of such loss or expensé.”

The insurance company defended the action'brought, by plaintiff against the aluminum, company. The issues therein wrere-actually tried, and a recovery had of $1,500. Judgment was entered, execution ' issued and returned unsatisfied, and no appeal from the judgment had been taken, and the time to appeal had expired.

These facts being admitted by the demurrer, they do not furnish any ground for a recovery against the insurance- company in this action.

The defendants had a legal riglit to contract with each other, and upon such terms as they saw fit. The insurance company had a legal right to impose such conditions upon its liability under the policy as it saw fit, and such conditions having been agreed upon by the aluminum company, the liability could not be extended by the insured or its employee, the plaintiff in this action. The. condition limiting such liability above quoted is in plain, unequivocal' language. Its meaning is not to be questioned, and the court is powerless to change the same or to impose any liability in violation of such condition. -

This question has arisen twice in the courts of this State (Munro v. Maryland Casualty Co., 48 Misc. Rep. 183; Burke v. London G. & A. Co., 47 id. 171), and the same views taken as herein expressed. It has arisen in the courts of various other States, and the rule laid down as herein held, except in New Hampshire, where the court, by construction, held that the language of this condition did not mean what the language’clearly and unmistakably implied. Some of the cases referred to in other States are Sanders v. Insurance Co. (72 N. H. 485); Cushman v. Fuel Co, (122 Iowa, 656); Frye v. Gas & Electricity Co. (97 Maine, 241); Travellers' Ins. Co. v. Moses (63 N. J. Eq. 260); Kinnan v. Fidelity & Casualty Co. (107 Ill. App. 406); Connolly v. Bolster (187 Mass. 266).

We do not desire to enter into any analysis or discussion of these cases, or the reasons expressed by the courts for their conclusions • therein. The question seems to ns to be one of the simple construction of a plain condition, expressed clearly and unequivocally, which the insurance company had a legal right to include in its con-contract, and of the' benefit and protection of which the courts cannot deprive it. We, therefore, conclude that the judgment should not be disturbed.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to the plaintiff to plead over upon payment of the costs of the demurrer and of this appeal.  