
    Frank T. Dunston, Appellant, v. Security Mutual Life Insurance Company, Respondent.
    Fourth Department,
    July 9, 1912.
    Insurance — suit in equity to prevent anticipated breach of oral contract — when suit premature.
    The holder of an insurance policy cannot maintain a suit in equity to have it adjudged that upon his death after a certain date the insurer cannot deduct the amount óf his certificate of indebtedness from the amount payable under his policy which, it is alleged, the insurer intends to do, or that, upon said date he is entitled to have the certificate canceled, where he admits that if he dies before said date the insurer may lawfully deduct the amount of the certificate from the amount payable under the policy and alleges only an oral agreement by which upon his surviving said date the certificate was to be canceled.
    Such suit for equitable relief is premature, being founded merely upon an anticipated breach Of the oral agreement.
    Appeal by the plaintiff, Frank T. Dunston, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of-the clerk of the county of Erie on the 18th day of April, 1912, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining the defendant’s demurrer to the complaint.
    . The demurrer was sustained at Special Term ■ on the ground that the'complaint does not state facts sufficient to con-' stitute a cause of action and that the court has not jurisdiction of the subject of the action.
    
      Elijah W. Holt, for the appellant.
    
      Harvey D. Hinman and Jay L. Gregory, for the respondent.
   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.  