I dissent, as I think the judgment recovered against the city was binding upon the plaintiffs by reason of the obligation assumed by the plaintiffs to protect the work so as to avoid such an accident as was occasioned to McGrann who obtained the judgment against the city and that the failure of the plaintiffs to protect the work while in charge of a sub-contractor was the cause of the liability to the city, and consequently was a liability of the'plaintiffs' and covered by *359the policy of insurance. Assuming that as between the plaintiffs and their sub-contractors it was the sub-contractors’ duty to protect this work as between the city and the plaintiffs, it was the plaintiffs’ duty and a duty which they were bound to perform. Having failed to perform that duty and as a result of that failure a liability having been imposed upon them, it was expressly within the terms of the defendant’s policy of insurance as a liability “ arising out of personal injuries caused by ” them. When the action was commenced against the city, the city notified the plaintiffs of that action and that they must defend. The plaintiffs thereupon notified the defendant of the pendency of that action and of its obligations to defend it, and after that notice was received counsel for the defendant assisted in the defense of the action, and whatever the private understanding with the city’s representative was as between the plaintiffs and this defendant it was acting in pursuance of the obligation contained in the policy of insurance and a judgment against the city in that action of which the insurance company had due notice was a judgment which imposed a liability upon the plaintiffs and for which the defendant was liable. The fact that that judgment was based upon a neglect of these plaintiffs to perform their obligation under their contract with the city was an adjudication that the plaintiffs had failed to perform its contract with the city, and no other proof was required to establish the plaintiffs’ liability, and the plaintiffs’ liability having been established, the defendant’s liability followed' I think, therefore, the plaintiffs were entitled to a verdict. I also think the action was brought in time, as the action which was pending against the city and of which the plaintiffs had notice and which was being defended by the counsel for the defendant was “ a suit arising out of such accident pending against the assured ” within, the provisions of the policy.
Judgment and order affirmed, with costs.