I concur in the reversal of this judgment. But I cannot agree with so much of the opinion as holds that the plaintiffs are not entitled to recover the counsel fees which they expended in the defense of the action brought to charge the tug with the liability of this collision. The defendant caused to be inserted in the policy a provision that the liability of the tug was to be determined by an action at law, if it so elected. . That provision in the policy gave it the right to insist that the amount of its liability should be fixed by a judgment in an action brought against the tug. But the condition of the policy, which is one framed by the defendant, is not to be extended by implication or inference. All that the plaintiff was compelled to do to comply with that condition was to permit himself to be sued or an action in rem to be brought against his tug, and to await the result of that litigation. When the judgment was entered, that established not only the liability of the tug, but the liability of the defendant. He did not agree nor was he asked to agree to *143defend any action, and the defendant, not having inserted a provision that he should do so in the policy, cannot now insist upon it. The conclusiveness of a judgment does not depend upon the fact that the suit in which it was obtained has been defended. If jurisdiction has been acquired, the judgment becomes conclusive from that fact. This was all that the defendant had a right to require by its contract, and it equally with the plaintiff would be bound by such a judgment. Clearly, if the plaintiff had no defense he would not be bound to interpose a defense, and that seems to have been the situation here. A useless defense was interposed solely because the defendant insisted that it should be done. It was not necessary to determine the effect or the amount of its liability. The contract was purely one of indemnity. Ordinarily in such a contract when an action is brought against the person who is' to be indemnified, he may give notice of the pendency of the action to the indemnitor, and if the indemnitor desires the action to be defended, he may do it or he may procure it to be done-at his expense by the person who is sued. In either case he is liable for the expenses of defending the action as a part of the loss which the plaintiff has suffered and which is covered by the contract. The loss here is covered, not because the tug was liable for those counsel fees, but because the defendant, in an effort to escape or to limit its liability, had procured the plaintiff to incur other expenses than those required by the contract, at its request and for its benefit. Under those circumstances the defendant is clearly, as it seems to me, hable in this action for the counsel fees.
Ingraham, J., concurred.
Judgment reversed, new trial ordered, costs to defendant to abide event.