
    Annie Skudera, Appellant, v. The Metropolitan Life Insurance Co., Respondent.
    (Supreme Court, Appellate Term,
    June, 1896.)
    Life insurance — Action to recover premiums paid.
    An action as for money had and received will not lie, where an insurance company wrongfully forfeits a policy for nonpayment of ' a premium, to recover back premiums theretofore paid upon such policy,-but the remedy is by an action for damages for breach of the contract or a suit in equity to declare the policy in force.
    Appeal from a judgment of nonsuit rendered by the District Court, in the city of New York, for the fourth judicial district.
    Action to recover, as for money had and received by the defendant to her use, all the premiums paid-by the plaintiff upon five certain policies of life insurance which were issued by the defendant and which, as alleged, it severally and wrongfully assumed to ■forfeit for the insured’s nonperformance of a condition subsequent the payment of a subsequently accrued premium at maturity.
    Chas. L. Hoffman, for appellant.
    C. N. Bovee, Jr., for respondent.
   Bischoff, J.

The action was in assumpsit to recover the premiums paid upon five several policies of life insurance which were alleged-to have been wrongfully forfeited by the insurer; and the judgment appealed from being one of nonsuit the plaintiff is entitled to a construction of the evidence most favorable to her. McNally v. Phoenix Ins. Co., 137 N. Y. 389.

Observing the rule stated, the case, as developed upon the trial, was that during the years 1882 and 1883-the plaintiff effected five policies of life insurance in the defendant company, upon each of which policies she regularly paid the weekly premiums as they matured until March, 1895, . amounting 'in the aggregate to $165.95; and that thereafter the defendant unjustifiably assumed .to forfeit each of such, policies for nonperformance of a- condition subsequent,, to wit: The payment of premiums maturing subsequently to those actually paid..

The question which arose upon the motion of the defendant’s counsel for dismissal of the complaint was solely with regard to the plaintiff’s right to recover in assumpsit, as for money had and received by the defendant to her use,- the premiums paid; and we concur in the justice’s decision that the plaintiff had mistaken her remedy.

Granting that upon the defendant’s breach the plaintiff could treat the contract, with regard, to each of the policies, as determined; it does not follow that the defendant was bound ex mquo ei bono to restore the premiums received by it, for which, in part, at least, the plaintiff had had value in the risk assumed by the defendant. Plainly, the plaintiff could not predicate a rescission of the contract of the defendant’s breach without restitution by her of what she had received under the contract, and a contract of life insurance being- essentially indivisible in point of performance by either of the parties thereto (Cohen v. N. Y. Mut. Life Ins. Co., 50 N. Y. 610), such restitution was- in the nature of tilings impossible. Wharton on Contracts, § 748; Clark on Contracts, 774; Hunt v. Silk, 5 East, 783.

In a case' such as the- one at bar, if the insured is unwilling to await the maturity of the policy and then to test its continued vitality, only' two remedies are available, the insured may either sue at law for damages for the insurer’s breach of contract, or prosecute an action in equity to have the policy adjudged to be in force and the insurer to accept the premium refused. Sutherland on the Meas. of Dam., § 838; Speer v. Phoenix Mut. Life Ins. Co., 36 Hun, 323; Day v. Conn. Gen. Life Ins. Co., 45 Conn. 480; 29 Am. Rep. 693; Hayner v. Am. Pop. Life Ins. Co., 69 N. Y. 435; Cohen v. N. Y. Mut. Life Ins. Co., supra.

The case at bar should be distinguished from the case where the failure of consideration for the premiums paid is entire in that the risk to be assumed by the insurer under the policy never attached, the policy being avoided for noncompliance with a condition precedent, fraud, or other causes. 11 Am. & Eng. Ency. of Law, 345; Delavigne v. United Ins. Co., 1 Johns. Cas. 310; Fulton v. Met. Life Ins. Co., 4 Misc. Rep. 76; Miller v. Union Cent. Life Ins. Co., 86 Hun, 6.

Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  