#### Louis Sroka, Appellant, *v.*The Frankfort American Insurance Co. of New York, Respondent.

(Supreme Court, Appellate Term,

June, 1905.)

Insurance — Against “ contingent liability *”*of insured — Wo recovery on policy.

Tlie bringing of an action upon a policy of insurance is an affirmance thereof, and if the liability insured against is one not known to the law, plaintiff cannot recover.

Where a policy of insurance, issued to the owner of a building during its erection, in effect only insured him against his *“*contingent liability” for the act or negligence of a contractor, a liability unknown to the law, the insurer incurs no liability under the policy.

Appeal by the plaintiff from a judgment dismissing the complaint entered in the City Court of the city of New York.

Durack & Brand (Otto H. Droege, of counsel), for appellant.

William A. Jones, Jr., for respondent.

Scott, J.

We find ourselves compelled, with much regret, to affirm this judgment. The action is upon a policy of insurance purporting, unless carefully read, to insure the owner of premises against accidents happening during the erection of a building, hut which in fact is. so skillfully worded as to insure him only against claims for which he would in no event be liable. The policy itself is not printed in the case on appeal, but there is no dispute as to its terms. As stated in the complaint the defendant undertook to insure the plaintiff *“*against loss from common law or statutory liability arising from the *contingent liability*of the assured as owner of said buildings for damages on account of bodily injuries accidentally suffered by any person whatsoever in connection with and during the reconstruction, *608alteration or repairs of the building above mentioned * f * caused by the act or negligence of any contractor or subcontractor engaged in the reconstruction or alteration of the said building.” This somewhat elaborate verbiage is undoubtedly well calculated to induce a belief in the mind of a layman, unskilled in the law, that he is obtaining an insurance against something in return for the premium he pays. Really, however, the words are meaningless. The insurance is against “ contingent liability ” for the act or negligence of a contractor or subcontractor. There is no such liability known to the law. The owner may be liable in a given case for the result of an accident, but his liability in such a case will be original and not contingent. The defendant’s counsel in his brief, in a natural effort to show that his client really gave something in return for the premium which it received from plaintiff, suggests that the policy is intended to cover the cost of investigating claims and defending actions when the owner is wrongfully sued for injuries caused by the contractor or his workmen while engaged in the construction of buildings, or is joined as a codefendant with such contractors. It is not quite apparent why the defendant admits even so much liability unless it be for mere shame’s sake in order to avoid the appearance of having given nothing for the premium received. Even the nonexistent “ contingent liability ” against which the policy purports to insure the plaintiff is limited to such as is his “ common law or statutory liability.” We do not understand that the expense of defending an unfounded claim is either a “ common law or statutory liability ” arising out of any contingent liability for the negligence of an independent contractor. The plight of an insured under such a policy is all the worse because, assuming that he is insured against something, he naturally commits the defense of any action to his insurer. In such a case the interest of the insurer is that a judgment shall gb against the owner, because it can only so run if it be made to appear that he was himself negligent, and then the judgment itself becomes conclusive evidence that the insurer is not liable on its policy. It seems to us entirely clear that the defendant took plain*609tiffs money and gave him in return a document purporting to be a policy of insurance which in fact insured him against nothing. We can, however, afford him no relief in this .action. In bringing the action he stands upon the policy and thereby affirms it. His loss does not fall within its terms and he may not, therefore, recover. Rosenbloom v. Travelers Ins. Co., 38 Misc. Rep. 744.

Dugeo, J., concurs.

MacLean, J.

(concurring). TJpon the decision of this court in Rosenbloom v. Travelers Ins. Co., 38 Misc. Rep. 744, the judgment herein must be affirm.'ed.

Judgment affirmed, with costs.