I think the judgment should be affirmed. ‘The complaint alleges that none of the persons killed or injured and who brought actions against the plaintiff were employees of the plaintiff, but were all employees of the contractor or sub-contractor engaged in constructing the building; that the accident was caused by some weakness in the structure of the building, part of which, to wit, the iron work, had been erected by the plaintiff, and it was alleged and claimed by the said persons injured and by the legal representatives of the persons killed thereby that the said iron work was negligently manufactured and erected by the plaintiff or his servants, and that such negligence was the cause, or one of the causes, of the accident. But there is no allegation that the injuries to recover for which the actions were brought were “ occasioned by the business operations ” of the plaintiff, and the plaintiff’s-supemitendent testified that none of the injuries to the persons who brought suit against the plaintiff were directly occasioned by the business operations of the plaintiff.
The policy of insurance which was made a part of the complaint provides that the defendant does hereby insure J. B. & J. M. Cornell of New York, or their successors, “ against loss from liability to employees of the insured, who may, during a term of twelve months from noon of July 3rd, 1895,: accidentally sustain bodily injuries while actually occupied in the performance of duty in the trade or occupation for which they have been employed by the insured, under circumstances which shall impose upon the insured a common-law or statutory liability to such emplbyees by reason thereof: Provided always; * * * 2. This insurance also covers the liability of the insured to persons, other than employees who may during the same term, accidéntally sustain bodily injuries directly occasioned by the business operations of the insured as described in the application for this policy, under "circumstances which shall impose upon *564the insured a common-law or statutory liability to such persons therefor, * * *. 6. * * * This company shall have sole. right, and it shall be its. duty to negotiate settlements and adjustments of all claims made against the insured, and covered by this policy. If legal proceedings be commenced to enforce such claim or claims against the insured, this company may pay the insured the full amount for which it can be held liable in respect of such claim or claims, failing which, it shall defend said proceedings on behalf of the insured, and shall have control of such defense.”
■The question is as to the obligation assumed by the defendant to defend actions brought against this plaintiff, where the plaintiffs in such actions claim that the insured is liable for bodily injuries occasioned by the .business operations of the insured, when in fact no such liability existed, and when such persons did not as a fact sustain bodily injuries occasioned by the business operations of the insured. To entitle the plaintiff to recover for the expenses incurred by him in the defense of this action he must bring the case within the obligations assumed by the defendant. The defendant assumed no obligation as to any liability of the plaintiff, except to such persons as should thus “accidentally sustain bodily injuries directly occasioned by the business operations of the insured,” and where the plaintiff seeks to impose upon the defendant an obligation to pay any liability that had been incurred by him, he must allege and prove that such liability had been imposed in consequence of accidental bodily, injuries directly occasioned by the business operations of the plaintiff. It is only to liabilities of this character that the policy attached and for which the defendant was liable.
It would seem to follow, therefore, that the claims of the persons injured by the collapse of the building were not liabilities of the plaintiff within the terms of the policy. The obligation of the defendant to defend claims against the plaintiff was limited to claims against the insured and covered by the policy. The claims covered by the policy were'claims of persons who had sustained bodily injuries occasioned by the business operations of the plaintiff, and the policy provides that if legal proceedings be commenced to enforce such claim or claims against the insured, “ this company may pay the insured the full amount for which it can be held liable in respect of such claim or claims, failing which, it shall defend said *565proceedings on behalf of the insured and shall have control of such defense.” Undoubtedly the insured, if claims were made against him, which, if sustained, would make this defendant liable, could have given notice to the defendant to defend such claims, and if they- had failed .to defend, he could then'have made the defendant responsible for any amount recovered, together with the expenses of the defendant in defending the claim. But when, as in this case, the defendant, denied liability, insisting that the claims were not within the terms of the policy, and the plaintiff succeeded in establishing the fact that they were not liabilities against the insured, it would seem to follow that for such claims there was no obligation on behalf of the defendant to defend the actions. The ¿defendant did not assume to defend all actions against the plaintiff. It only assumed to defend claims made against him which were covered by the policy; and the further provision of the policy, that the company should not be liable for any expenses incurred by the insured without its consent in writing, would seem to have been intended to limit the right of the plaintiff to incur any expense in defending these suits for which the defendant should be liable. The liability assumed by the defendant is specific and .limited by the terms of the policy, and I fail to see any obligation assumed by this defendant which imposes upon it a liability for expenses incurred by the plaintiff without the consent of the company in defending actions against the defendant, when the actions were commenced by persons who had not sustained injuries occasioned by the business operations of the insured.
I think, therefore, that the judgment appealed from should be affirmed, with costs.
Judgment reversed, new trial ordered, costs to appellant to abide event.