#### Cooper *v.*United States Mut. Acc. Ass’n.

*(Supreme Court, General Term, Second Department.*

July 18, 1890.)

Insurance—Action on Pouter—Limitation.

A certificate of membership issued by defendant association to plaintiff’s husband provided that a certain amount should be paid plaintiff, should her husband die from an injury, and within 90 days from such injury. The policy also provided that proof of death must be furnished the association within six months from the accident, and that claims should be payable within 90 days after satisfactory prooi. *749
      *Held,*that the further provision that action should be begun within one year from the time of the alleged accidental injury” meant not a year from the accident, but from the time when the right of action was complete.

Appeal from circuit court, Orange county.

Action by Frances E. Cooper against the United States Mutual Accident Association of the city of New York on a certificate of membership issued by defendant to Theodore H. Cooper, plaintiff’s husband, which promised to pay to plaintiff $5,000, should said Theodore H. Cooper die from ah injury, and within 90 days from such injury. The policy provided that positive proof of death from causes covered by the certificate must be furnished the association within six months from the happening of the accident, and that claims under the certificate should be payable within 90 days after satisfactory proof. From a judgment for plaintiff, defendant appeals.

Argued before Dykman and Pratt, JJ.

*Wm. B, Smith,*for appellant. *Lewis B. Carr,*for respondent.

Pratt, J.

The only point urged against the recovery is that the action was not begun within one year from the time the injury was inflicted that caused the death. The policy requires the action to be begun within “one year from the time of the alleged accidental injury. ” Defendant claims that the time began to run on December 10th, when the accident happened. Plaintiff argues that the time had not begun to run on January 2d, when death ensued, nor until the proofs were completed, and right of action complete. The action was begun December 29th,—less than a year after the death, but more than a year after the accident. In answer to the contention of defendant the plaintiff points out that, if it be acceded to, cases might well arise where, the death not occurring for nearly 90 days after the accident, and 90 days additional being allowed defendants after the proofs were made satisfactory to them before an action could be maintained, it would be easy for defendants, by raising objections to the proofs, to entirely deprive plaintiffs from having any time within which an action could be brought.

The clause upon which the defense depends is confused, and its meaning is perhaps uncertain. But the court will seek to find a meaning that will be reasonable, and adequately protect the rights of both parties. However it may have been with defendant, it is quite evident the insured could not have understood his rights to depend absolutely upon the good will of the defendant. He must have so interpreted the contract as to allow a reasonable time in which suit could be brought after the right of action was complete. In similar cases the courts have made rulings which authorize us to hold the time of the alleged injury to mean when the proofs are accepted, and the claim is in a condition to be sued. *Ames*v. *Insurance Co.,*14 N. Y. 253; *Mayor*v. *Insurance Co.,*39 N. Y. 45; *Hay*v. *Insurance Co.,*77 N. Y. 235; *Steen*v. *Insurance Co.,*89 N. Y. 315, 323. This is in accordance with the familiar rule that, where language is ambiguous, it will be construed so as to avoid a forfeiture. *Post*v. *Weil,*115 N. Y. 371, 375, 22 N. E. Rep. 145; *Jacobs*v. *Spalding,*71 Wis. 190, 36 N. W. Rep. 608. So, where a party to a contract seeks to destroy its obligation by reason of the breach of a condition, the terms of the contract must be clear and explicit in his favor. *Clinton*v. *Insurance Co.,*45 N. Y. 464; *Morse*v. *Insurance Co.,*30 Wis. 540. We think the authorities require us to hold that the plaintiff had 12 months to bring the suit after the right of action was complete. It follows that the judgment must be affirmed, with costs.