In Buchholz v. United States Fire Ins. Co. (269 App Div 49, 51, 53 NYS2d 608 [1st Dept 1945], lv dismissed 294 NY 807, 62 NE2d 239 ), the first action was dismissed due to failure to obtain an appraisal prior to suit against an insurance company--a condition precedent under the policy to commencement of suit.
The Court held that the action could be refiled, reasoning:
"Where the failure to perform a condition precedent has barred consideration of the substance or merit of the cause, the right to a second suit is saved by the section." (Buchholz, 269 App Div at 51.)