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Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Philip Cohen, for appellants.
Hartman & Levy (Hugo Levy, of counsel), for respondent.

GILDERSLEEVE, P. J. This appeal arises from the following undisputed state of facts:

The plaintiff herein on July 20, 1908, brought an action in the Municipal Court against one Sam Knee and another, and an attachment was issued and a levy made upon property alleged to be owned by the defendants in that action. The defendant Walker, claiming to be the owner of the attached property, executed with the defendant Bitz a bond and delivered the same to the marshal, who thereupon approved the same and released the attachment levy. The condition of the bond, as provided for in section 85 of the Municipal Court act (Laws 1902, p. 1517, c. 580), is:

"That, in an action upon the bond to be commenced within three months thereafter the claimant will establish that he was the general owner of the property claimed at the time of the seizure, or if he fails so to do that he will pay to the plaintiff the value thereof, with interest."

Upon July 29, 1908, the plaintiff brought an action upon the bond, which action was adjourned from time to time until November 12, 1908, when it was discontinued. On November 16, 1908, the present action was brought upon the bond, which it will be seen was some 29 days over the 3-month limitation specified in section 85, supra, within which an action must be begun. The defendants interposed a general denial and pleaded the statutory limitation named in said section 85. Plaintiff recovered a judgment, from which the defendants appeal.

It is urged by the respondent herein that it was the duty of the appellants to begin the action upon the bond. The reading of section 85 alone would possibly leave this question in some doubt; but by reading section 86 of the act it is clear that the action named in section 85 is to be brought by the plaintiff in the attachment suit, as it provides that:

"If successful the judgment must award to him the value of the property delivered to the claimant; and if the amount so recovered exceeds the amount which the plaintiff recovers in the action in which the warrant of attachment was issued, he is liable to the defendant for the excess."

In other words, it makes the sureties in the bond liable to the plaintiff in the attachment suit for the full value of the goods attached, no matter what the amount of the attachment debt may be, and leaving the plaintiff in the attachment suit liable to the defendant in such suit for any excess recovered by the plaintiff in the attachment suit against the sureties in the bond, above the amount of the attachment debt. Moreover, the section provides that the action is to be brought "upon the bond,” and if the sureties in the bond are to begin an action upon the bond such action, if plaintiff's reasoning be correct, must be

Concededly this action was not brought within the time limit of section 85. The plaintiff, however, seeks to evade this situation by invoking the provisions of section 405 of the Code of Civil Procedure. That section, so far as material herein, reads as follows:

“If an action is commenced within the time limited therefor, and a judgment therein is reversed upon appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, the plaintiff

may commence an action for the same cause, after the expiration of the time so limited and within one year after such reversal or termination."

This section is a part of chapter 4, and chapter 4 relates wholly to the "limitation of the time of enforcing a civil remedy.” It specifies the several causes of action, and limits the time within which such actions must be commenced. Section 405 is one of the general provisions applicable to the several special provisions of said chapter, and applies only to those several causes of action enumerated in said special provisions. It has no reference, and is not applicable, to a case of this kind; and section 414 expressly declares that the provisions of this chapter shall not apply to "a case where a different limitation is specially provided by law or a shorter limitation is prescribed by the written contract of the parties.”

It is also the fact that the judgment roll of the previous action, offered in evidence in this action shows, apparently, that such action was discontinued voluntarily by the plaintiff, or on plaintiff's application, which would, if true, be a barrier to plaintiff's second action under section 405, supra, even if said section was applicable.

Judgment reversed, and complaint dismissed, with costs to appellants in this court and in the court below. All concur.

DIAMOND V. METROPOLITAN LIFE INS. CO.

(Supreme Court, Appellate Term. May 7, 1909.) 1. INSURANCE (8 146*)-CONSTRUCTION OF POLICY-ANSWERS IN APPLICATION.

Insured's answers in his application to questions therein framed by the company will be construed most favorably to insured.

(Ed. Note.—For other cases, see Insurance, Cent. Dig. $ 295; Dec. Dig.

$ 146.*] 2. INSURANCE (8 665*)—BREACH OF WARRANTY-EVIDENCE-SUFFICIENCY.

Where the policy was issued in December, 1904, and insured died July 22, 1905, two physicians who attended at his death testifying that he died of pulmonary tuberculosis and in their opinion he had been “ill” from 14 months to 2 years, but not testifying as to the nature of his illness, the company cannot avoid payment of the policy on the ground of breach of warranty of soundness of health and freedom from consumption.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1713; Dec.

Dig. 8 665.*] 3. INSURANCE (8 292*)-BREACH OF WARRANTY-MEDICAL ATTENDANCE,

Insured was examined before the policy was issued, and stated in his application that he had never been treated in a dispensary, when he in fact had been so treated a year before for an unknown ailment. He died about 8 months after he was insured; his wife stating that he had

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

been ill about 2 months, and two physicians who attended him at his death testifying that in their opinion he had been “Ill” for 14 months and 2 years, respectively, and that he died of pulmonary tuberculosis, but did not state the nature of his illness. Held, that it could not be said that the company would have rejected the policy, had it known that insured had been treated in a dispensary, and under the circumstances there was not a breach of warranty on that ground, so as to avoid the policy.

(Ed. Note.-For other cases, see Insurance, Cent. Dig. § 691; Dec. Dig. § 292.*) Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Beckie Diamond against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Ritch, Woodford, Bovee & Butcher (Frederick C. Tanner, of counsel), for appellant.

Leopold Freiman, for respondent.

PER CURIAM. In December, 1904, the defendant company issued a policy for $500, payable to the plaintiff herein, upon the death of her husband, Joseph Diamond. Diamond died July 22, 1905. The plaintiff sued upon the policy and recovered judgment. The defendant appeals.

In the proofs of death it appears from the statements of two doctors who attended the deceased at the Montefiore Home, where he had gone about two months before his death, that death was due to “tuberculosis pulmonary.” Neither of these doctors had ever seen the deceased until he came under their treatment at the Montefiore Home. In the opinion of one deceased had been ill one year and two months, and in the opinion of the other he had been ill about two years. Neither undertook to state the nature of the illness. The defendant appellant challenges the judgment upon the ground that the evidence shows breaches of warranty as follows, viz. : (1) As to soundness of health at the time of the delivery of the policy; (2) freedom from consumption; (3) not under the care of any physician within two years; (4) never under treatment in any dispensary.

If it is to be concluded that either of the three warranties first named was violated, such conclusion must be inferred from the disease of which the insured died, and the opinion of the two doctors as to its probable duration. It will be noted that the doctors gave it as their opinion that the insured had been ill, but did not assume to testify that the illness was of a pulmonary character. When we remember that the defendant is endeavoring to avoid payment on its insurance contract because of answers to inquiries or declarations which it had framed, and that a construction or inference most favorable to the insured must be adopted, it should not be held that the insured was guilty of a breach of either of the first three warranties above named.

It is the claim of the appellant that the falsity of the statement of

the deceased that he had never received treatment in any dispensary, set forth above as the fourth alleged breach of warranty, is established by the statement of the plaintiff, in answering question 13, in plaintiff's Exhibit 2, that deceased "was treated at Essex Street Dispensary over one year ago. Called there once. Claimant cannot tell the cause of complaint." An examination of Plaintiff's Exhibit 1 (the policy and application) indicates clearly that the object of the question and answers is that no material fact shall be withheld from the company. Should it be said that when the insured was asked, among the numerous questions propounded, if he had ever received treatment at any dispensary, and responded in the negative, he was guilty of withholding a material fact, because on one occasion, over one year before, he received treatment at Essex Street Dispensary for some unknown complaint? We think not. It is unreasonable to assume that a statement of the visit to the dispensary would have caused a rejection of the insured's application and prevented the execution of the contract.

The theory of the defense is that the judgment should not stand for the reason that the deceased perpetrated a fraud upon the defendant by procuring from it a contract of insurance when he was, and for some time had been, suffering from pulmonary trouble. The wife of the insured, the plaintiff herein, states that the illness of the insured extended over about two months. The two physicians say he died of “pulmonary tuberculosis," and give it as their opinion that he had been ill for more than one year before he came under their treatnient. They do not, as we have seen, give an opinion as to the nature of his previous illness. The deceased was examined by the defendant company before the policy was issued. There is no evidence as to the condition of the deceased as disclosed by that examination. The reasonable inference is that, if the deceased was at that time suffering from pulmonary tuberculosis, that fact would have been discovered by the defendant's agents.

We are of the opinion that the evidence fails to establish a breach of warranty, and the judgment should be affirmed.

Judgment affirmed, with costs to the respondent.
DAYTON, J., taking no part.

VAN NEST WOODWORKING CO. V. MINKA et al.

(Supreme Court, Appellate Term. May 7, 1909.) 1. MECHANICS' LIENS ($ 132*)—DELIVERY OF MATERIAL.

Where, at the time of filing notice of mechanic's lien, the owner had paid the entire contract price to the contractor, a delivery, within 90 days prior to the filing of the lien, of materials worth 10 or 12 cents, alleged to have been ordered to replace defective materials previously delivered, did not constitute a delivery of materials which would validate the lien.

[Ed. Note.--For other cases, see Mechanics' Liens, Cent. Dig. $ 200 ; Dec. Dig. 132.*)

For other cases see same topic & $ NUMBER 10 Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. MECHANICS' LIENS (8 303*)-DAMAGES UPON FAILURE TO PERFECT.

Under Code Civ. Proc. $ 3412, if a mechanic's lienor fails to establish a valid lien, he may recover judgment in the action for such sums as are due him on which he might recover in an action on a contract against any party to the action.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. $8 628631; Dec. Dig. $ 303.* ]

Appeal from Municipal Court, Borough of the Bronx, First District.

Action by the Van Nest Woodworking Company against Jacob Minka and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.

Arthur H. Wadick, for appellants.
Bartley J. Wright, for respondent.

PER CURIAM. The uncontradicted facts are substantially as fol. lows: This action was commenced on October 4, 1907, by the plaintiff, a domestic corporation, against the defendants, for the foreclosure of a mechanic's lien; the defendant Minka as the owner of the premises sought to be foreclosed, and the defendant Masche as the contractor engaged in the erection of the building upon the land, in connection with which the plaintiff is alleged to have furnished materials. Notice of lien herein was docketed in the office of the clerk of the county of New York on the 24th day of July, 1907, and in support of said lien the plaintiff attempted to prove the delivery of material within 90 days prior to the filing of the lien, which would be at a date subsequent to the 24th of April, 1907, and in that connection offered in evidence a delivery receipt, bearing date June 10, 1907. One Angus, the cashier of the plaintiff, stated that the materials appearing on said delivery receipt had been ordered by said defendant contractor, Masche, the day before the delivery; i. e., June 9, 1907. It appeared, on crossexamination, that the materials delivered on June 10, 1907, consisted of two parting strips, which were alleged by the plaintiff corporation to have been delivered to take the place of strips previously delivered and found to be defective. These parting strips were of the value of about 10 or 12 cents, and were subsequently returned to the plaintiff corporation.

The defendant contractor, Herman Masche, testified that he never complained that the parting strips delivered by the plaintiff were defective, and that the ones first delivered were in good condition and actually used in the building; that the contract price for the erection and completion of the building, made by him with the defendant Minka, was $6,000; that the building was completed on or about the 25th day of June, 1907; and that there was no money due him on July 24, 1907, when the lien was filed. Masche further testified that the last check received from the defendant owner, Minka, was for the sum of $1,025, which check was paid to him at the end of June, 1907; that he received the first payment of $1,000 the last of January or

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