Opinion
October, 1920.
The insurance was effected by the mortgagor and she retained possession of the policy until her death and her personal representatives have since had it in their possession. The mortgagee never had it. Therefore, the mortgagee was under no affirmative obligation to have the conditions devolving upon the insured complied with. It may be that as between the insurance company and the mortgagee no notice or proof of loss was necessary. (See McDowell v. St. Paul F. M. Ins. Co., 207 N.Y. 482.) If the insurance company is liable upon the policy to the mortgagee and it is a substantial collateral security to his debt, it may be the heirs at law, who, it is claimed are mere sureties, may be entitled to be subrogated to the rights of the mortgagee and require an assignment thereof, but that question is not before us and we do not decide it. The mortgagee was entitled to full payment of his mortgage and the heirs at law can only require him to surrender whatever collateral security still exists. All concur, except De Angelis and Hubbs, JJ., who dissent. Order, so far as appealed from, affirmed, with ten dollars costs and disbursements.