(dissenting):
Had there'been attached to the policy in question the regular “mortgage clause” providing that any act or neglect of the mortgagor or owner should not invalidate the policy as to the mortgagee, it would have been unnecessary for the plaintiff to furnish proofs of loss or prove that the owner had done so. (Heilbrunn v. German Alliance Insurance Company, 140 App. Div. 557.) The reason why the mortgagee would not be obliged to furnish proofs of loss in such a case is that the mortgage clause attached to the policy constitutes a new and independent contract between the insurance company and the mortgagee by which no proof of loss was required to be furnished. Where, however, the mortgage clause is not attached and the policy is issued to the mortgagor with loss, if any, payable to the mortgagee as his interest may appear, the entire contract is with the mortgagor and not with the mortgagee or to him separately, and although the mortgagee may maintain an action in case of loss he can do so only where the mortgagor could recover in case he had not appointed a mortgagee to receive the money. This principle is enunciated in many cases from Buffalo Steam Engine Works v. Sun Mutual Ins. Co. (17 N. Y. 401) to Lewis v. Guardian Fire & Life Assurance Co. (181 id. 392).
It is true that in Armstrong v. Agricultural Ins. Co. (130 N. Y. 560, revg. 56 Hun, 399) and Moore v. Hanover Fire Ins. Co. (141 N. Y. 219, revg. 71 Hun, 199) and kindred cases the policy had been forfeitéd by some act of the mortgagor prior to the sustaining of the loss and because of which it was held that the mortgagee could not recover.
I can find no decision holding that where there has been no forfeiture of the policy prior to the fire the voluntary failure or refusal of the mortgagor to furnish proofs of loss defeats recovery by the mortgagee appointed to receive the *728money in case a loss shall occur, but upon principle it seems to me that such must be the effect. The mortgagee in the absence of a mortgage clause being a mere appointee to receive the money in case of loss, and not being otherwise a party to the contract of insurance, must depend for his right of recovery upon the right of the mortgagor to recover, with whom the contract of insurance is made.
In the present case, by the. express stipulation of the con-, tract, the mortgagor could not recover unless he furnished proofs of loss within a specified time. The mortgagor is the insured, and there is no provision in. the policy that the appointee to receive the money may furnish proofs of loss on his own account or on behalf of the insured. The complaint alleges that the plaintiff and the insured performed all the conditions of the policy required to compel the defendant tó pay the loss, but on the trial.it was conceded that the mortgagor, the insured, refused to make proofs of loss, and that the proofs made by the plaintiff were returned by the defendant with a statement that they were insufficient and not in accordance with the requirements of the policy. If the insured had deliberately set fire to the buildings, or had violated any of the conditions of the policy prior to the occurring of the fire, concededly the plaintiff could not recover. The contract being with the mortgagor and he being the person insured, it seems to me that the same result must follow when the insured refuses to make proof of loss. The making of proofs of loss is a condition precedent to recovery, and the policy specifying who shall make such proofs and not giving the plaintiff any right to make them in his own .behalf or in behalf of the insured it follows that iio right of recovery exists. • ’
I, therefore, vote for an affirmance of the judgment.
Judgment reversed and new trial granted, with costs to appellant to abide event.