
    Simon Heilbrunn, Respondent, v. German Alliance Insurance Company of New York, Appellant.
    
      Heilbrunn v. German Alliance Ins. Co., 140 App. Div. 557, affirmed.
    (Argued April 24, 1911;
    decided June 16, 1911.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 4, 1910, which reversed an order of Special Term sustaining a demurrer to the complaint and overruled said demurrer.
    
      The following question was certified: “Does the amended complaint state facts sufficient to constitute a cause of action? ”
    
      Alton B. Parker and Leo Levy for appellant.
    
      Jacob P. Schiff and Isidore D. Morrison for respondent.
   Collin, J.

The nature of the action and the facts, so far as material, are stated in the opinion of. Scott, J., below. (Heilbrunn v. German Alliance Ins. Co., 140 App. Div. 557)

We admit that insurance companies ought to have more protection in the matter of the time within which actions upon their policies must be brought, and possibly in other respects, than has been afforded them under the decision of the Appellate Division in this case; but the difficulty is that the language of those stipulations or conditions of the policy which relate to the proceedings after the liability of the company has accrued through the fire, does not enable or permit us to apply them to the mortgagee in such part only as may be practicable or expedient. We must hold (unless our decision is to be wholly arbitrary) that all those stipulations, which in terms relate to the mortgagor only, apply equally to the mortgagor and mortgagee, or we must hold that none of them do. The former dictates that which is impossible of performance. The remedy of the companies is to apply to the legislature for leave to modify, as to the matters indicated, the standard fire insurance policy of the state of New York.

On the merits we concur with the opinion of Scott, J., below.

The order of the Appellate Division in this case should, therefore, be affirmed, with costs, and the question certified answered in the affirmative.

Cullen, Oh. J., Gray, Haight, Vann, Werner and Hiscocic, JJ., concur.

Order affirmed.  