Fallert v. Massachusetts Bonding & Insurance

Headnote

Fallert v. Massachusetts Bonding & Ins. Co., 172 App. Div. 690 , affirmed.

Appeal from a judgment entered May 12, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court, and directing a dismissal of the complaint. A contractor in the city of New York as a condition to a license to use explosives furnished a bond with the defendant, respondent, as surety conditioned for the payment of any “ loss, damage or injury resulting to persons or property ” from explosives. Plaintiff’s intestate was killed September 11,1909, as the result of a blast, and on January 30, 1912, this action was commenced to recover for his death. The defense was that the action was not commenced within two years after the accident as required by section 1902 of the Code of Civil Procedure. Plaintiff contended that the action was not brought to recover under the statute; that it was an action upon a bond, under seal, and, therefore, the plaintiff had, under section 381 of the Code of Civil Procedure twenty years within which to bring the action.