less commenced within the timé of twelve months next after the loss shall occur,” etc. The whole trend of this opinion, and the decision of the court, show that such a provision was regarded, not as giving the insured a specific time during all of which he might sue, but simply as fixing a period beyond which he could not sue.
It appears that a former suit, brought within a year after the loss occurred, was dismissed, and this action instituted after the year had elapsed. But it is well settled that the bringing of an action within the time limited, and which is afterwards dismissed, will not save the second action, commenced subsequently to the expiration of the time, from the operation of the limitation. O’Laughlin vy. Insurance Co., 11 Fed.. Rep. 280; Riddlesbarger v. Insurance Co., 7 Wall. 386; Wilson v. Insurance Co., 27 Vt. 99; Arthur v. Insurance Co., 78 N. Y. 462. To the former action the defendant pleaded as a defense that it was prematurely brought, in that sixty days had not elapsed since the receipt by it of proofs of loss. This defense the company had a perfect right to make without waiving the limitation clause. See Arthur v. Insurance Co., 78 N. Y. 462. The two provisions are independent of each other. If the insured places himself in a position where he cannot sue within the time limited without suing prematurely, and cannot, on the other hand, wait until he has a right to sue after making proofs of loss without having his claim destroyed by the limitation provision, it is his own fault; and the company had an undoubted right to urge the defense that the action was prematurely brought without being held to waive the other defense to the second action, commenced too late. Moreover, the time had not run when the first action was brought, and the limitation defense could, therefore, not have been interposed to that action. It cannot be said that the defendant, the California Company has estopped itself from setting up the defense by holding out to the insured the hope of a settlement without suit. Assuming that all that was said and done by its own agent, and also by the agent of the Phenix Company, was sufficient to justify the insured in refraining from suing, there came a time when he became satisfied that the companies did not intend to pay; and
