
    Philip H. Moore et al., Ex’rs, Resp’ts, v. The Hanover Fire Insurance Co., Impl’d, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    1. Insurance (fire)—Waiver of. conditions.
    A policy of insurance, in which the loss was payable to the mortgagee, provided that it should be void if foreclosure proceedings should be commenced or notice given of sale of the property, and that the assured should make proof of loss within sixty days after a fire. Foreclosure proceedings were commenced, of which notice was given to defendant’s agent, who agreed that their commencement should not injure the policy, but made no indorsement. After a fire occurred the assured refused, without reason, to make the proofs of loss, whereupon the mortgagee made and served them, sixty-one days after the fire, on defendant, which simply raised the objection that they were not made by the assured. Held, that the conditions of the policy as to foreclosure and the time within which the proofs should be served were waived.
    
      %. Same—Proof of loss, when mat be made bt mortgagee.
    Where the assured refuses to make the proofs of loss without any ground therefor, except that she requires a payment of money for so doing, the mortgagee, who is the real beneficiary, is justified in making the proof.
    Appeal from judgment in favor of plaintiffs, directed by the court on a trial without a jury.
    
      A. T. Clearwater, for app’lt; Esselstyn & McCarty, for resp’ts.
   Pratt, J.

The plaintiffs, Moore et al., mortgagees 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 given of sale of any property covered by this 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 sixty 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 28, 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 sixty 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. The 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 plaintiff to pay money to her or her lawyer. Without attempting to characterize such conduct farther 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.

Dykman, J., concurs; Barnard, P. J., not sitting.  