(dissenting). The failure to file a proper proof of death by accidental means, or to allege and prove a waiver thereof, was sufficient to defeat plaintiff’s claim.
In Strang v. Prudential Ins. Co. (263 N. Y. 71) the court said: “ Receipt by the defendant of due proof of death was a condition precedent to recovery on the-policies. (Acee v. Metropolitan Life Ins. Co., 219 App. Div. 246, 248.) * * *
“ It may well be doubted whether that evidence was sufficient to permit anything but a guess that the papers received by the defendant were proofs of death. And a guess is not a proper substitute for proof.”
In the case of O’Reilly v. Guardian Mutual Life Ins. Co. (60 N. Y. 169) Allen, J., wrote the following: “ The notice and proof of death required as conditions precedent to a right of action upon the contract were distinct and separate acts. ‘ Proof ’ of death, if seasonably made, might serve for both the proof and notice contemplated, as the more authentic and verified information, contained in the ‘ proofs,’ would ordinarily include all the particulars which would be communicated by the informal notice. But the converse is not true. A mere notice cannot supply the place *177of, or dispense with, the more formal proof provided for in the policy.”
The same subject was considered by the United States Supreme Court in the case of Bergholm v. Peoria Life Ins. Co. (284 U. S. 489). In that case (at p. 491) Sutherland, J., said: “Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof.” (See, also, Page v. Commercial Travelers’ Eastern Acc. Assn., 225 Mass. 335; 114 N. E. 430.)
The complaint was properly dismissed and the judgment should be affirmed.
Merrell, J., concurs.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.