
    (71 Hun, 199.)
    MOORE et al. v. HANOVER FIRE INS. CO. OF CITY OF NEW YORK et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Insurance—Conditions of Policy—Waiver.
    Where proofs of loss are made by the mortgagee of the insured premises, and the company objects thereto only on the ground that they should have been made by the assured, it thereby waives the conditions of the policy tl:at the consent of the company to the commencement of foreclosure proceedings should be indorsed on the policy, and that proofs of loss should be made within 60 days after the fire.
    Appeal from special term, Dutchess county.
    Action by Philip H. Moore and Philip J. Ackert, as executors ■of the will of Barbara G. Rikert, deceased, against the Hanover Fire Insurance Company of the city of New York, and Maggie P. C. Smith, to recover on a policy of fire insurance. The policy was issued by defendant insurance company to defendant Smith to the amount of $2,000; loss, if any, payable to plaintiffs’ testatrix, as mortgagee of the insured premises. From a judgment in favor of plaintiffs the insurance company appeals.
    Affirmed.
    A’gued before DYXMAN and PRATT, JJ.
    A. T. Clearwater, for appellant.
    Esselstyn & McCarty, for respondents.
   PRATT, J.

The plaintiffs, Moore et al, auditors of the insured' premises, sue on defendant’s policy of fire insurance, issued to-Smith, covering, among other things, a dwelling house on the mortgaged premises,—$1,500; loss, if ' any, payable to .the mortgagee. The policy contained a condition that (unless otherwise provided by agreement indorsed on the policy) it should be void “if, with the knowledge of the assured, foreclosure proceedings be commenced or notice of salé of any property covered by the policy by virtue of any mortgage or trust deed.” If any fire occurred the assured was to give immediate notice to the company, and make proof of loss within 60 days after the fire. The mortgagee commenced foreclosure proceedings August 17, 1891. The papers were served on the insured on that day. An agent of the defendant was informed of the fact, and agreed that the proceedings might be commenced without injuring the policy. It did not appear what the extent of the agent’s authority was, but the fact was that no agreement of waiver was indorsed on the policy. Again, the building was destroyed by fire October 23, 1891, and the assured, (Smith,) without just cause, refused to sign the proofs of loss, and thereupon the plaintiff made them out, and sent them to the company on December 26, 1891, which was the sixty-first day after the fire. The case shows no complicity between the assured and the company in her refusal to sign the proofs. There was a deficiency on the foreclosure. I find no difficulty with the failure to furnish proofs of loss within the 60 days. They were sent to and received by the company. It did not reject them because they were not served in time. On the contrary, it did specify the objection that the assured had not made the proofs of loss herself. This would seem to indicate a waiver of the mere matter of time. I think we are justified in holding a similar rule respecting the failure of the agent to indorse the agreement about foreclosure proceedings on the policy. The proof is clear that he said and orally agreed that the policy should stand, notwithstanding the proceedings instituted. Then, when the notice and proofs were served, they were not rejected because the policy had become void. On the contrary, they were retained, and the company contented itself with merely “calling attention” to this clause of the policy, without stating that it would stand on that objection. Instead of standing there, they apparently selected their ground, which was that the assured had not herself made the proofs of loss. I think we are therefore justified in holding that these objections were waived, and that the case stood as though they were without foundation.

In respect to the remaining objection, we shall hold that the proofs of loss were well served by the plaintiffs. This assured refused to make the proofs of loss unless she was paid for it. There was no ground for her refusal. She ought to have signed the proofs, but she, without cause, refused, simply to induce plaintiffs to pay money to her or her lawyer. Without attempting to characterize such conduct further than to say that it was a fraudulent attempt to obtain money, we hold that, under all the circumstances, the real beneficiaries of this policy made the best proof which they were able to furnish. The fact that the loss was payable to the mortgagee furnishes a strong reason inducing us to hold that, in face of this fraudulent refusal to do her duty, the real beneficiary was justified in making the proof. We therefore, though not without some hesitation, affirm this judgment, with -costs.  