PEOPLE ex rel. STEPHENSON v. BINGHAM, Police Com'r. (Supreme Court, Appellate Division, First Department. May 21, 1909.) MUNICIPAL Corporations (§ 185*) – POLICE — VIOLATION of Rule of DepartMENT DISMISSAL.

Violation by a captain of police of rule 7, par. A, of the New York police department, providing that each captain shall frequently visit portions of the precinct at uncertain hours of the day and night, by habitually failing to make inspection between midnight and 8 a. m. and persistently remaining away from his precinct during such hours, was proper ground for dismissal from the force.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 492; Dec. Dig. § 185.*]

Certiorari by the People, on the relation of John T. Stephenson, against Theodore A. Bingham, Commissioner of the Police Department of the City of New York. Writ dismissed.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.

Louis O. Van Doren, for relator.

Francis K. Pendleton, Corp. Counsel (Theodore Connoly, of counsel and Terence Farley, on the brief), for respondent.

CLARKE, J. The relator who was a captain of police in charge of the 184th precinct, the Williamsburg Bridge, was charged with conduct unbecoming a captain of police, conduct injurious to good arder and discipline, neglect of duty, and violation of the rules. The first specification was that he did fail and neglect to visit portions of the 184th precinct at uncertain hours of the day and night, and especially between and during the hours of 12 midnight and 8 a. m., each day during the periods from November 21, 1907, to December 5, 1907, from December 13, 1907, to May 18, 1908, and from May 20, 1908, to July 9, 1908, and this in violation of rule 7, paragraph A, of the rules and regulations of the police department. Second. That he did fail and neglect to assure himself of the proper maintenance of good order and discipline and the proper performance of patrol duty by the members of the force detailed in the 184th precinct each day, during and between the hours of 12 midnight and 8 a. m., during the periods of time mentioned, and did absent himself from the 184th precinct between the hours of 12 midnight and about 7:30 a. m. each day during said periods of time.

Rule 7, paragraph A, is as follows:

"Each captain shall be held responsible for the preservation of the peace and the prevention of crime within his precinct, and shall enforce all orders, rules and regulations established for the good government of the same. He shall frequently visit portions of the precinct at uncertain hours of the day and night. *

*

The purpose of the rule is obvious. The captain of a precinct is responsible for the vigilance, efficiency, and discipline of his command. To insure the proper performance of police duty, he is personally re

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 113 N.Y.S.-66

quired to visit portions of his precinct at uncertain hours of the day and night. This duty cannot be evaded, nor the performance of it delegated. The knowledge by the force that the commanding officer is liable to appear at any time is a powerful incentive to vigilance. On the contrary, the practical certainty that for a given number of hours each night there is no danger of inspection by the captain is a direct invitation to careless, lax, and inefficient patrol.

The evidence is conclusive that during the time covered by the specifications the relator habitually violated the rule by making no inspections during the hours of the night specified and persistently remained away from his precinct. The relator had a fair trial, the rule was plain and well known to him, and the facts are not disputed. A reversal of the decision of the commissioner under such circumstances would be destructive of the discipline and morale of the force.

The writ should be dismissed, and the proceedings affirmed, with $50 costs and disbursements. All concur.

CREEM et al. v. FIDELITY & CASUALTY CO. OF NEW YORK. (Supreme Court, Appellate Division, First Department. May 7, 1909.) 1. INSURANCE (§ 622*)—ACTION ON POLICY-LIMITATIONS OF POLICY.

Under Code Civ. Proc. § 414, a contractor's liability policy may prescribe a shorter limitation for an action thereon than that provided by statute.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1545; Dec. Dig. § 622.*]

2. INSURANCE (§ 622*)-ACTION ON POLICY-LIMITATIONS OF POLICY. A contractor's liability policy provided that no action should be brought thereon after the expiration of the period within which an action for damages on account of the injuries might be brought by the claimant against the insured, unless at the expiration of such period there should be a suit pending, arising out of the accident against the insured, in which case an action might be brought within 30 days after final judgment therein. An action brought against insured, who had contracted to build a bridge, for injuries to a pedestrian, incidental to the construction of the bridge, was discontinued with the consent of the attorneys for the insurer, who undertook to defend the action, and an action on the policy was brought by the insured more than 30 days thereafter, and after limitations had run against the injured person. Held, that the action on the policy was barred, as the plaintiff in the injury action had an absolute right to discontinue on payment of costs. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1546-1550; Dec. Dig. § 622.*]

3. INSURANCE (§ 622*)—ACTION ON POLICY-LIMITATIONS OF POLICY.

The fact that an action brought by the injured person against the bridge company was pending at the expiration of three years did not affect the limitation.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1546-1550; Dec. Dig. § 622.*]

4. INSURANCE (§ 622*)--ACTION ON POLICY-LIMITATIONS OF POLICY.

The fact that the action brought on the policy was commenced within 30 days from entry of judgment against insured in an action by the bridge company, against which a judgment had been rendered for the

injuries, did not relieve insured from the bar of the policy, as the action against insured by the bridge company was not one arising out of accident.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1546–1550; Dec. Dig. § 622.*]

5. INSURANCE (§ 645*)—ACTION ON POLICY-ISSUES ANd Proof.

Defendant issued to plaintiff contractor for the erection of a bridge, a liability policy, and also insured the bridge company, and when a pedestrian who was injured, incidental to the construction of the bridge, brought an action against the bridge company, insurer's attorneys assumed the defense and notified plaintiff that it would be liable to the bridge company in case of a recovery. In an action on the policy by plaintiff, the complaint alleged that in response to such notice, and at insurer's request, and upon its promise that every opportunity would be afforded plaintiff to protect his interest, plaintiff assisted in the defense of such action. Held, that such allegation was not sufficient to admit proof of waiver or estoppel precluding insurer from defending on the ground that the action was barred under limitations prescribed by the policy.

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 645.*] 6. APPEAL AND ERROR (§ 837*)-REVIEW-MATTERS CONSIDERED.

A judgment cannot be sustained on appeal by considering testimony stricken out by the trial court which was not passed on by the jury. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 837.*] 7. INSURANCE (§ 668*)-LIABILITY POLICY-ACTION-QUESTION FOR JURY.

Where plaintiff, who undertook to build the foundations for the pillars of an elevated railroad, stated in his application for a liability policy that his business was "general contractor, sewer construction," and the work was quite similar to sewer construction, and in an action brought against plaintiff for injuries the insurers assumed the defense, it could not be said on an action on the policy that there was a breach of warranty as a matter of law.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1735–1741; Dec. Dig. § 668.*]

8. INSURANCE (§ 665*)—ACTION-EVIDENCE-SUFFICIENCY.

In an action on a liability policy, evidence held insufficient to show that the broker through whom the policy was secured was an agent of insurer.

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 665.*] 9. INSURANCE (§ 513*)-LIABILITY POLICY-EXTENT OF LIABILITY.

Where insured in a liability policy indemnifying him against damages recovered for injuries owing to his negligence successfully defended an injury action, he could not recover expenses of litigation from insurer. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 513.*] Laughlin, J., dissenting in part.

Appeal from Trial Term, New York County.

Action by Daniel J. Creem and another against the Fidelity & Casualty Company of New York. From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, MCLAUGHLIN, and CLARKE, JJ.

Charles C. Nadal, for appellant.

Herbert C. Smyth, for respondents.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

MCLAUGHLIN, J. The plaintiffs, who are copartners in the contracting business under the firm name of Daniel J. Creem & Co., undertook to build the foundations for the pillars of an elevated railroad which the Phoenix Bridge Company was under contract to construct for the Brighton Beach Railroad Company. This action was brought on a policy of liability insurance by which defendant indemnified them for the term of one year commencing April 1, 1896, against damages recovered for personal injuries sustained by their employés or by the public generally through the negligence of their employés. On the 6th of June, 1896, one Kate Johnston, while passing along a public street, sustained personal injuries alleged to have been caused by an obstruction placed and suffered to remain therein by the bridge company in connection with the work which they had contracted to do. Some time thereafter she and her husband each brought an action in the Supreme Court against the bridge company and others to recover damages resulting from the injury. The action brought by Kate Johnston was tried on the 6th and 7th of April, 1899, and the complaint dismissed, apparently upon the ground that the plaintiffs in this action were responsible for the obstruction in the street, and, they being independent contractors, the bridge company was not liable for their negligence. An appeal was taken from the judgment; and the Johnstons also commenced actions against these plaintiffs to recover damages for the same injury. On the appeal the judgment dismissing the complaint against the bridge company was reversed, and a new trial ordered. 44 App. Div. 581, 60 N. Y. Supp. 947. From this order the bridge company appealed to the Court of Appeals, giving a stipulation for judgment absolute, and the order was affirmed and judgment ordered for the plaintiff. 169 N. Y. 581, 62 N. E. 1096. The damages were thereafter assessed at $6,500 and judgment for some $7,300 entered against the bridge company. The action brought by Bernard Johnston against the bridge company was tried in May, 1902, and he obtained a verdict for $4,000. Both of these judgments were paid, and thereafter, on July 1, 1902, the actions which the Johnstons had brought against these plaintiffs were, by consent, discontinued. After the bridge company had paid the two judgments referred to, and on June 3, 1902, it commenced two actions against Creem & Co. to recover the amount of the same. Action No. 1, which was predicated on the Kate Johnston judgment, resulted in a verdict in favor of Creem & Co., on which judgment was entered January 6, 1904. On appeal this judgment was affirmed. Phoenix Bridge Co. v. Creem, 104 App. Div. 618, 93 N. Y. Supp. 1145. When action No. 2, which was predicated on the Bernard Johnston judgment, was tried, proof was given that the bridge company had notified Creem & Co. of the pendency of the action brought against it by Bernard Johnston, and the court thereupon excluded testimony tending to show that Creem & Co. had not been guilty of negligence, and at the conclusion of the trial directed a verdict for the bridge company, upon which judgment was entered against Creem & Co. for $5,636.32. This judgment was subsequently affirmed by the Appellate Division (102 App. Div. 354, 92 N. Y. Supp. 855), and in June, 1906, by the Court of Appeals (185)

by the Court of Appeals, and on the 3d of July, 1906, the present action was commenced, by which the plaintiffs seek to recover the expenses incurred by them in defending action No. 1 and the amount paid in satisfaction of the judgment obtained in action No. 2.

At the trial the principal defenses relied upon were: (1) That the action was not commenced within the time required by the policy, and for that reason a recovery could not be had; and (2) that the policy was void because the plaintiffs had been guilty of a breach of warranty by stating in their application, which was annexed to and made a part of the policy, that their business was that of "General Contractor, sewer construction," whereas they were actually engaged in building foundations for an elevated railroad. At the conclusion of plaintiffs' case the defendant moved for a nonsuit, which was denied and an exception taken, whereupon defendant rested without offering any evidence, and asked that a verdict be directed in its favor. The plaintiffs also asked for the direction of a verdict. The court directed a verdict for the plaintiffs for $5,000, the maximum liability, under the policy of insurance referred to, of the defendant for injuries to any one person; $898.33, expenses incurred in action No. 2; and $506.68, expenses incurred in successfully defending action No. 1, together with interest-amounting in all to $7,045.51. From the judgment entered thereon, and from an order denying a motion for a new trial, the defendant appeals.

It urges that the judgment appealed from cannot be sustained for the reason that the action was not commenced within the time provided in the policy. The parties had a right to prescribe a shorter limitation for the commencement of an action under the policy than that provided by statute. Such right is recognized in section 414 of the Code of Civil Procedure, which provides that the general provisions of chapter 4, tit. 3, shall not apply to "a case, where a different limitation is specially prescribed * * * by the written contract of the parties." Id. subd. 1. The policy in question provided that:

"No action shall lie against the company after the expiration of the period within which an action for damages on account of the given injuries * might be brought by such claimant * against the assured, unless, at the expiration of said period there is a suit arising out of such accident pending against the assured, in which case an action may be brought in respect to the claim involved in such action against the company by the assured within thirty days after final judgment is rendered in such suit and not later."

Mrs. Johnston was injured on the 6th of June, 1896, and an action to recover damages therefor, or for loss of her services, had to be brought within three years thereafter. Code Civ. Proc. § 383, subd. 5; Maxson v. D., L. & W. R. R. Co., 112 N. Y. 559, 20 N. E. 544. Three years thereafter-June 6, 1899-the two actions which the Johnstons had brought against the plaintiffs were pending, but as already stated, after the Johnstons had recovered their judgments against the bridge company these actions were, by consent, discontinued. The orders of discontinuance, while not, in effect, final judgments, terminated the, actions, and it necessarily follows that the present action, which was not begun until July 3, 1906-more than four years