(dissenting). In my opinion, the language of the policy here involved is such as to show clearly that, in order to support a claim in behalf of the insured for total disability benefits, due proof of such disability must be given to the insurer during the lifetime of the insured. .
The provisions of the policy respecting the giving of proof of total disability are as follows:
“ New York Life Insurance Company agrees to pay to the Insured -
“ A Monthly Income of Twenty-Five Dollars * * * upon receipt of due proof that the Insured is totally and presumably permanently disabled * * *.
“ Upon receipt at the Company’s Home Office * * * of due proof that the Insured is totally disabled as above defined, and will be continuously so totally disabled for life, * * * the following benefits will be granted: * * (Italics supplied.)
These provisions require that the proofs to be furnished to the insurer must show that the insured “ is totally and presumably permanently disabled ’ ’ and that ‘ ‘ the Insured is totally disabled * * * and will be continuously so totally disabled for life ”,
In this case the complaint alleges that the insured became totally and permanently disabled on January 2, 1945; that such total disability continued until his death on April 23, 1947; and that proof of the insured’s disability was not furnished to the insurer until October 27, 1947, or about six months after the death of the insured.
Obviously proof submitted six months after the insured’s death does not constitute proof that the insured “ is totally and presumably permanently disabled ”; nor that the insured “ is *660totally disabled * * * and will be continuously so totally disabled for life The most that can be said for such proof is that it purports to show that the insured had been totally disabled for a period of time during his lifetime. Where, as in this case, the proof is not submitted until six months after the death of the insured, no adequate opportunity is afforded to the insurer to test the merits of the claim made against it.
While it may be true that neither this court nor any higher court in this State has heretofore been called upon to determine the question here presented, it has received the consideration of some of our other courts (see Yohalem v. Columbian Nat. Life Ins. Co., 136 Misc. 748; Kasarsky v. New York Life Ins. Co., 145 Misc. 732, and Mutchnick v. John Hancock Mut. Life Ins. Co., 157 Misc. 598). These cases support the decision of the court below in the action before us. It is noteworthy that the ruling in the Yohalem case (supra) was cited and followed by reviewing courts in other jurisdictions (Kantor v. New York Life Ins. Co., 219 Iowa 1005, and Anderson v. New York Life Ins. Co., 64 Cal. App. 798). Similar conclusions were reached in Bennett v. New York Life Ins. Co. (63 Idaho 427) and in Hinkley v. Penn. Mut. Life Ins. Co. (37 F. Supp. 1018). In my opinion the reasoning in those cases is sound and should be adopted by this court.
I am fully mindful of the fact that — in the trenchant words of the concurring opinion herein (p. 658) —“ Insurance companies are in the business of running risks for pay # * * for an agreed compensation, they gamble with fate ”, and that “ Punning risks, they are not only careful, but extremely cautious.” But we should not overlook the further fact that insurance companies now constitute an important and highly useful factor in our economy. They have become great reservoirs of public credit. Hence their assets and resources should always be guarded with care and caution.
An insurance company which under its policy obligated itself to pay disability benefits upon proofs submitted after the death of the insured would be inviting the dissipation of its assets by chicanery. I am satisfied that the defendant in this case, in phrasing its policy, studiously sought to avoid any such disastrous consequences, and that the language of the policy accomplishes that purpose.
To construe the policy in this case as permitting the making of a claim for total- disability benefits upon proof submitted after the death of the insured is to ignore its precise and clearly *661understandable words. Such a construction would leave the insurer virtually helpless against dishonesty. It would widely open the door to the perpetration of frauds with impunity.
The order and the judgment appealed from should be affirmed.
Eder, J., concurs with Hecht, J., in opinion; Pécora, J., dissents in opinion.
Judgment and order reversed, etc.