(dissenting). I disagree. Coming back to fundamentals, the policy provided, as in the Ross case (13 N Y 2d 233; 235) “ In. the event [o/] any payment ” (emphasis supplied), then the insurer may be subrogated to the rights of the *41insured. But the insured contracted with the Royal Indemnity Company, and paid a vast premium ($524,724) for restoration in the event of loss. The insurance company accepted the risk. It should now pay. Instead of promptly paying the insured, the insurance company now wants the right of subrogation over against the alleged tort-feasor; incidentally, tieing up the insured in a maze of collateral motions, examinations, interlocutory appeals, interminable delays, and inevitably, additional expenses, all of which the insured did not bargain for. It could have taken its chances, dispensed with the insurance, and then sued the tort-feasor itself.
And there is nothing in the foregoing rationale that is not consonant with Krause v. American Guar. & Liab. Ins. Co. (22 N Y 2d 147). Indeed, it is countenanced in the Court of Appeals opinion (p. 156): “ It is true, as the Appellate Division noted, that the parties to an insurance contract can covenant that the insurer shall have no right to sue the third party until the insurer’s liability has been established or the claim paid in part or in full.” And here, unlike in the Krause case, we have such a precise covenant. And it is a covenant which has found favor with the Court of Appeals. “ Therefore, in this connection, the Appellate Division’s analysis of Ross would seem correct # # * on its facts Ross is clearly correct.” (Krause, supra, p. 156.)
Nunez and Murphy, JJ., concur with Stevens, P. J.; Steuer, J., concurs in an opinion; McGtvern, J., dissents in an opinion.
Order, Supreme Court, New York County, entered On August 22,1972, affirmed. Respondent shall recover from appellant $60 costs and disbursements of this appeal.