Dunston v. Security Mutual Life Insurance

136 N.Y.S. 674 | N.Y. App. Div. | 1912

FÓote, J.:

Plaintiff seeks by this action to have it now adjudged that upon his death after November 1, 1915, defendant cannot deduct the amount of his certificate of indebtedness from the amount payable under bis policy, or. that upon that date he is entitled to have said certificate surrendered up and canceled.

He admits that upon his death before that date defendant may rightfully deduct the amount of the certificate from the amount payable under the policy, but he alleges that there was an oral agreement by which upon his surviving that date the certificate was to be surrendered and his liability or indebtedness thereunder to cease. He further alleges that defendant threatens and intends to violate such oral agreement upon his death after November 7,1915, by deducting the amount of said certificate from the amount payable under his policy, and in case he survives that date by refusing to cancel and surrender said certificate to him.

The object of this action is to prevent an anticipated and threatened refusal by defendant to perform the oral agreement on or after November 7, 1915, in the event that plaintiff lives to that date.

If he dies before that date, there can be no breach of the oral agreement. If he survives that date, there will be á breach at once. If defendant then refuses to cancel and surrender the certificate, he can then bring his action at once and, if necessary, have his own testimony perpetuated -under section 870 of the Code of Civil Procedure.

There is no ground for equitable relief at the present time based on the possibility or probability that defendant will refuse to perform the oral agreement on November 7, 1915, and that plaintiff’s personal testimony to prove the oral agreement may not then be available. It will be, if he is alive, and if he is not, no suit will be necessary.

The complaint is not framed to procure a reformation of the certificate of indebtedness by incorporating therein the alleged oral agreement, and we need not consider whether such an action can be maintained. It is sufficient to say that this is not such an action.

The interlocutory judgment should be affirmed, with costs, with leave to plaintiff to amend the complaint within twenty days upon payment of the costs of the demurrer and of this appeal.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to the plaintiff to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.