I dissent and vote to reverse the judgment on the law and to render judgment for the defendant, dismissing the complaint.
The interest of the plaintiff, the beneficiary named in the policy, was contingent, subject to the right of the insured to obtain loans on the policy without her consent and without notice to her; and to his right to cause the policy to lapse by non-payment of premiums. She was not a “ donee beneficiary ” in the strict legal sense. Present or future unpaid premiums were not an 11 indebtedness ” as defined either in the policy or in subdivision 7 of section 101 of the Insurance Law. The insured could elect whether he would pay them or not, and the insurer had no right of action to collect them. If unpaid at the end of the grace period, the policy lapsed, which is what occurred in this case. At the time the insured made application for a maximum loan on the policy no premium was due; nor was it legally due at the time the loan was made. In the obscurities of subdivision 7 of section 101 of the Insurance Law I find no mandatory provision that the insurer must deduct from the loan asked by the insured the “ unpaid balance of the premium for the current policy year.” If that had been enforced, the insured would not have been entitled to a loan, for the loan value did not equal the yearly premiums. So the provision as thus interpreted would render action impossible. Beyond that, the insured had elected to pay premiums quarterly, and he had the right to elect to stop paying at the end of any quarter, and let the policy lapse. The insurer had no right under the contract to collect a year’s premium in advance. The policy and the statute outlined the general rights of the parties, subject to mutual agreement and the right of either party to waive rights at best somewhat obscure. The insurer offered the insured three options and he took the one most favorable to him at the time, thereby waiving any right the statute gave him. The insurer had the right to waive prepayment of the premium which the insured was not at the time obligated to pay. The latter *143had the choice to pay at the end of the grace period or to let the policy lapse by non-payment. Evidently he chose the latter course, for the premium was not paid. In my opinion there exists no legal right or equity which justifies recovery by the plaintiff on this lapsed policy.
Hagarty, J., concurs.
Judgment affirmed, with costs.