First Department, May, 1909. * * [Vol. 132. on the contrary, the notes were all left in the safe of Mr. McBurney when I ceased my activity on my own recommendation." This second delivery was on or about the fifteenth of June. Yet on August third he writes: "For months I advised you to take legal steps to recover the notes from Stein and Campbell." We think that, taking this evidence in connection with all the other evidence in the case which establishes the active participation of Barry in every step of the preliminary proceedings, a pure question of fact was presented for the jury; that the evidence corroborated Campbell, tended to connect the defendant with the commission of the crime, and entitled the jury to draw the inference which the verdict establishes it did draw. The appellant contends that the cross-examination of the defendant. was improper, and it certainly did cover a pretty wide range; but as the defendant commenced his own examination in chief with an account of his early life, from the time of his birth, his education, his business, his associates and his friends, presumably for the purpose of convincing the jury that it was not probable that such a man could be guilty of the crime charged, he ought not to complain if the cross-examiner marched through the door which he had so widely opened. "It is the well-established rule," said WERNER, J., in People v. Hinksman (192 N. Y. 421), "in this State that a defendant in a criminal action who offers himself as a witness may be interrogated as to any vicious or criminal act of his life," citing People v. Webster (139 N. Y. 73); Brandon v. People (42 id. 265); People v. Giblin (115 id. 196); People v. McCormick (135 id. 663) and People v. Casey (72 id. 393). We do not think the discretion of the court upon the cross-examination of the defendant was improperly exercised. The appellant contends that some remarks of the assistant district attorney in the summing up in alluding to the absence of character witnesses for the defendant was reversible error, but the learned court in its charge said: "At the District Attorney's request I advise you to disregard the comments made by the District Attor ney on that evidence, and the comment is withdrawn from your consideration." So that the motion which defendant's counsel made that the jury be instructed to disregard the remark of the district attorney, and that it be stricken out, was granted by the court. App. Div.] First Department, May, 1909. The appellant claims that the prosecution failed to prove that the notes in question had any value. At the time of the alleged conversion they were negotiable instruments of a going concern, duly authorized by the directors thereof, and, undoubtedly, valid obligations for the payment of money in the hands of bona fide holders, and seem to be covered by the provisions of section 545 of the Penal Code, that, "If the thing stolen consists of a written instrument, being an evidence of debt, other than a public or corporate certificate * or security having a market value, the amount of money due thereupon or secured to be paid thereby and remaining unsatisfied, or which in any contingency might be collected thereupon or thereby, or the value of the property transferred or affected, or the title to which is shown thereby, or the sum which might be recovered for the want thereof, as the case may be, is deemed the value of the thing stolen;" and there is nothing in the point taken. * * * * Upon the whole case we find no reversible error. It follows, therefore, that the judgment appealed from should be affirmed. PATTERSON, P. J., INGRAHAM, HOUGHTON and Scorr, JJ., concurred. Judgment affirmed. DANIEL J. CREEM and SETH L. KEENEY, Respondents, v. THE FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant. First Department, May 7, 1909. Insurance-limitation of action fixed by policy - when action barred action against person to whom insured was liable not action against insured within meaning of policy - pleading — allegations not showing waiver of limitation - appeal - consideration of evidence stricken out — when policy covers work undertaken by insured - evidence insufficient to show agency - recovery of expenses of successful suit. Parties to a contract of insurance may agree upon a shorter limitation for the commencement of an action on the policy than that prescribed by statute. Where a contract insuring a sub-contractor against liability for negligence provides that no action will lie against the insurer after the expiration of the First Department, May, 1909. [Vol. 132. period within which an action for damages for personal injuries might be brought against the insured unless at the expiration of said period there is a suit arising out of an accident pending against the insured, in which case the latter may bring action against the insurer within thirty days after final judg ment in the pending action, but not later, and the insured having been held liable for a judgment suffered by the principal contractor and having agreed to the discontinuance of a subsequent suit brought by the person injured for the same cause, cannot, after the Statute of Limitations has run against the person injured, maintain an action on the policy against the insurer. This is so, although the insurer undertook the defense of the action against the insured and without the knowledge or consent of the latter consented to the discontinuance, for the plaintiff in that action had an absolute right upon the payment of costs to discontinue where the action is at law and the defendant asked for no affirmative relief. The fact that there was an action pending by the person injured against the principal contractor before the expiration of three years from the time of injury, is no aid to the sub-contractor although later he was compelled to pay the judgment therein obtained, for such action was not pending against the insured within the meaning of the policy. Even if actions brought against the principal contractor be deemed actions against the sub-contractor within the meaning of his policy of insurance, there can be no recovery on the policy where the action thereon is not brought within thirty days after final judgment against the principal contractor. Although the sub-contractor sued on his policy within thirty days after final judgment obtained against him by the principal contractor, he is bound by the limitation of action prescribed in the policy, for such suit by the principal contractor was not a suit arising out of the accident pending against the insured. Although the defendant also insured the principal contractor and had assumed the defense of an action against it and notified the sub-contractor that he was liable over to the principal contractor in case of a recovery, the sub-contractor, suing the insurer, by alleging that in response to such notice and at the request of the insurer, and upon its agreement to protect his interest to the fullest extent, assisted in the defense of the suit against the principal contractor, cannot prove either an estoppel or a waiver by the insurer of the limitation of action contained in the policy. The appellate court will not sustain a judgment on evidence stricken out by the court below and not considered by the jury. Although the insured in the application for the policy stated their business to be "general contractors, sewer construction," though actually engaged in the construction of foundations for an elevated railroad, the policy must be deemed to have covered liabilities incurred in such work where the insurer, knowing all the facts. undertook the defense of actions brought against the insured. Evidence examined, and held, insufficient to justify a finding that the broker, through whom the polley was secured, was agent of the insurer. App. Div.] First Department, May, 1909. In an action on a policy indemnifying an employer against damages for personal injuries, the insured is not entitled to recover the expenses incurred in successfully defending an action brought by the person injured where the policy covered only claims for which the insured was legally liable. LAUGHLIN, J., dissented in part, with opinion. APPEAL by the defendant, The Fidelity and Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of May, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the same day, denying the defendant's motion for a new trial made upon the minutes. Charles C. Nadal, for the appellant. Herbert C. Smyth, for the respondents. MCLAUGHLIN, J.: The plaintiffs, who are copartners in the contracting business under the firm name of Daniel J. Creem & Co., undertook to build the foundations for the pillars of an elevated railroad which the Phoenix Bridge Company was under contract to construct for the Brighton Beach Railroad Company. This action was brought on a policy of liability insurance by which defendant indemnified them for the term of one year commencing April 1, 1896, against damages recovered for personal injuries sustained by their employees or by the public generally through the negligence of their employees. On the 6th of June, 1896, one Kate Johnston, while passing along a public street, sustained personal injuries alleged to have been caused by an obstruction placed and suffered to remain therein by the bridge company in connection with the work which they had contracted to do. Sometime thereafter she and her husband each brought an action in the Supreme Court against the bridge company and others to recover damages resulting from the injury. The action brought by Kate Johnston was tried on the 6th and 7th of April, 1899, and the complaint dismissed, apparently upon the ground that the plaintiffs in this action were responsible for the obstruction in the street and they being independent contractors, the bridge company was not liable for their negligence. An appeal was taken from the First Department, May, 1909. [Vol. 132. judgment; and the Johnstons also commenced actions against these plaintiffs to recover damages for the same injury. On the appeal the judgment dismissing the complaint against the bridge company was reversed and a new trial ordered (Johnston v. Phænix Bridge Co., 44 App. Div. 581). From this order the bridge company appealed to the Court of Appeals, giving a stipulation for judgment absolute, and the order was affirmed and judgment ordered for the plaintiff (169 N. Y. 581). The damages were thereafter assessed at $6,500 and judgment for some $7,300 entered against the bridge company. The action brought by Bernard Johnston against the bridge company was tried in May, 1902, and he obtained a verdict for $4,000. Both of these judgments were paid and thereafter, on July 1, 1902, the actions which the Johnstons had brought against these plaintiffs were, by consent, discontinued. After the bridge company had paid the two judgments referred to and on June 3, 1902, it commenced two actions against Creem & Co. to recover the amount of the same. Action No. 1, which was predicated on the Kate Johnston judgment, resulted in a verdict in favor of Creem & Co., on which judgment was entered January 26, 1904. On appeal this judgment was affirmed (Phænix Bridge Co. v. Creem, No. 1, 104 App. Div. 618). When action No. 2, which was predicated on the Bernard Johnston judgment, was tried, proof was given that the bridge company had notified Creem & Co. of the pendency of the action brought against it by Bernard Johnston, and the court thereupon excluded testimony tending to show that Creem & Co. had not been guilty of negligence, and at the conclusion of the trial directed a verdict for the bridge company, upon which judgment was entered against Creem & Co. for $5,636.32. This judgment was subsequently affirmed by the Appellate Division (Phoenix Bridge Co. v. Creem, 102 App. Div. 354), and in June, 1906, by the Court of Appeals (185 N. Y. 580). After the judg ment had been affirmed by the Court of Appeals, and on the 3d of July, 1906, the present action was commenced, by which the plaintiffs seek to recover the expenses incurred by them in defending action No. 1 and the amount paid in satisfaction of the judgment obtained in action No. 2. At the trial the principal defenses relied upon were: (1) That the action was not commenced within the time required by the |