Opinion
Argued October 10, 1912
Decided November 26, 1912
Henry W. Taft and Charles C. Nadal for defendant, appellant and respondent.
Herbert C. Smyth, Frederic C. Scofield and William W. Gooch for plaintiffs, respondents and appellants.
The chief question presented upon this review is as to whether the action was commenced within the time limited by the express provisions of the policy, and if not, as to whether the transaction between Nadal and Creem amounted to a waiver of the provision of the policy limiting the time within which a suit could be brought. We are unwilling to adopt a construction of this policy which would bar the action before it arose. Such could not have been the honest intent of the parties. It appearing that no action arose on behalf of the plaintiffs against the defendant until final judgment had been entered against them on the 25th day of June, 1906, and also that the plaintiffs brought this action within thirty days thereafter, they complied with the requirements of the provision of the policy, and, therefore, their action was not barred. This question has been fully discussed in the prevailing opinion of MILLER, J., below, who, though feeling bound by the previous decision of this case in that court, expresses his personal view to this effect. In this respect we approve and adopt the same. This conclusion renders it unnecessary to consider the other questions discussed in his opinion.
As to the plaintiffs' appeal, in which the claim is made that they should be awarded judgment for the expenses incurred in defending the action of the bridge company, in which the verdict was entered in their favor, we have concluded that their claim should be allowed at the sum of $582.94.
The judgment should be modified by increasing the same in the amount of $582.94, with interest from date of judgment, and as so modified affirmed, with costs to the plaintiffs.
CULLEN, Ch. J., VANN, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ., concur.
Judgment accordingly.