Creem v. Fid. & Cas. Co. of New York

• Decision Date: 26 November 1912
• Citation: 206 N.Y. 733,100 N.E. 454
• Court: New York Court of Appeals Court of Appeals
• Parties: CREEM et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.

206 N.Y. 733

100 N.E. 454

CREEM et al.

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Court of Appeals of New York.

Nov. 26, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Daniel J. Creem and another against the Fidelity & Casualty Company of New York. From a judgment of the Appellate Division, First Department (141 App. Div. 493,126 N. Y. Supp. 555), modifying and affirming a judgment entered in favor of the plaintiffs and affirming an order denying the defendant's motion for a new trial, both parties appeal. Modified and affirmed.

This action was brought on a policy of liability insurance, by which the defendant indemnified the plaintiffs in the sum of $5,000, 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. The policy, among other things, provided that:

‘(2) The assured, upon the occurrence of an accident, and also upon receiving information of a claim on account of an accident, shall give immediate notice in writing of such accident or claim with full particulars to the company, at its office in New York City, or to the agent, if any, who has countersigned this policy.

‘(3) If thereafter any legal proceedings are taken against the assured to enforce a claim for damages on account of such accident, the company will defend the same at its own cost, in the name and on behalf of the assured.

‘(4) The assured shall not, except at his own cost, settle any claim, nor incur any expense, nor interfere in any negotiation for settlement or in any legal proceedings without the consent of the company previously given in writing, but he may provide such immediate surgical relief as may be imperative. The assured shall render the company all reasonable aid in securing information and evidence in effecting settlements and in cast the company calls for the attendance of any employé or employés as witness in suits, the assured will secure his or their attendance, making no charge for his or their loss of time .’

‘(12) 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 or death might be brought by such claimant or his representatives 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.

‘(13) In case of loss under this policy, the company shall be subrogated to all claims or rights of the assured in respect to such loss against any third party or parties, and the assured shall execute any and all papers required to secure to the company said rights.’

On the 6th day of June, 1896, one Kate Johnston, while passing along a public street, sustained personal injuries, alleged to have been caused by an obstruction which was suffered to remain therein by the Phoenix Bridge Company, who were the original contractors for the building of the foundation for the pillars of an elevated railroad, but which, in fact, was the fault of the plaintiffs herein, to whom the contract had been sublet. Thereafter Mrs. Johnston and her husband each brought an action in the Supreme Court against the bridge company; she to recover damages for the injuries which she had sustained by the fall, and the husband for his loss of her services and the expenses incurred thereby. These actions finally resulted in judgments being entered against the bridge company, that of Kate Johnston for $7,887.23, January 23, 1902, and that of her husband...