Before any evidence was taken at the trial the defendant moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, but the motion was denied and the defendant excepted. This ruling survives unanimous affirmance by the Appellate Division and is open to review by this court. (Jones v. Reilly, 174 N.Y. 104;Sanders v. Saxton, 182 N.Y. 477, 478.)
The defendant was not required to present the question by demurer or answer, but could raise it by motion made at the trial. (Weeks v. O'Brien, 141 N.Y. 199, 203; Code Civ. Pro. § 499.)
The case made by the complaint was not in equity to relieve from forfeiture and reinstate the policy, but purely at law to recover damages for the breach of its contract by the defendant. The only promise made by the defendant in the contract was to pay a sum of money on the death of the plaintiff, but no breach of that promise was alleged. The plaintiff is still living and nothing is yet due upon the contract, according to its terms. What breach was alleged? The only allegation on that subject is that the defendant wrongfully declared the contract "void and forfeited," denied that the plaintiff had "any rights thereunder," and refused "to continue *Page 19 said policy in force." How or why, when, to whom or by whom the defendant declared the contract forfeited, or denied the plaintiff's rights thereunder, or refused to continue it in force, is not stated. There is no allegation of a refusal to receive premiums, or give receipts therefor, or that the defendant had never recognized its contract, or that it had not retracted its repudiation, or that it was in such a position that it could not retract. The pleader was satisfied with the conclusion that he set forth. This was not a breach of the contract, because the time for performance by the defendant had not arrived. An attempt to repudiate such a contract does not make it due. If the maker of a promissory note, given for borrowed money and due one year after date, notifies the holder the next day that he repudiates it and will not pay it, can the holder sue at once? Can a mortgagor make his mortgage due before the law day by repudiating it in advance?
The rule that renunciation of a continuous executory contract by one party before the day of performance gives the other party the right to sue at once for damages, is usually applied only to contracts of a special character, even in the jurisdictions where it obtains at all. It is not generally-applied to contracts for the payment of money at a future time and in some states the principle is not recognized in any way whatever. (Daniels v.Newton, 114 Mass. 530; Stanford v. McGill, 6 N. Dak. 536;Carstens v. McDonald, 38 Neb. 858; King v. Waterman,55 Neb. 324.) In other states and in the Federal courts the principle is adopted but applied with caution. (Roehm v.Horst, 178 U.S. 1, 17, 18; Schmitt v. Schnell, 14 Ohio C.C. 153; Brown v. Odill, 104 Tenn. 250; Roebling's Sons Co. v.Fence Co., 130 Ill. 660; Unexcelled Fire Works Co. v.Polites, 130 Pa. St. 536.) In this state it seems to be limited to contracts to marry (Burtis v. Thompson, 42 N.Y. 246); for personal services (Howard v. Daly, 61 N.Y. 362) and for the manufacture or sale of goods (Windmuller v. Pope, 107 N.Y. 674;Nichols v. Scranton Steel Co., 137 N.Y. 471); at least we have not extended it to mutual life insurance policies, perhaps for the *Page 20 reason that the question of fact opened to unscrupulous persons by such extension might undermine the solvency of the company and inflict gross injustice upon the other policyholders.
The plaintiff alleges a breach only by anticipation. We held directly against his contention in a recent case which we regard as controlling. (Langan v. Supreme Council Am. L. of H.,174 N.Y. 266.) That was an action at law founded upon a certificate of insurance, whereby the defendant promised, upon the death of the plaintiff, to pay his wife a sum not exceeding $5,000. The plaintiff alleged performance until the "defendant by its wrongful act broke the said contract and declared the same void." He further alleged that the defendant had "failed to carry out the conditions of the contract by declaring that it will not perform the contract or pay the insurance agreed to be paid, and that, upon his death, the beneficiary will not then be entitled" to the sum specified, "and that by reason of the breach of the aforesaid contract by defendant, plaintiff has sustained damages in the sum of $5,000." A judgment for $1,505.96, "the present value of the policy," was affirmed by the Appellate Division, but reversed by this court, upon the ground that "there was no breach of contract * * * which justified an action for damages; that the action of the plaintiff" in tendering performance "preserved the contract of insurance as it was; that he was not, thereupon, compelled to a course of inaction, but might resort to a court of equity * * * and compel the defendant to live up to its contract."
The principle of that case controls this. Both actions were at law to recover damages for the breach of the same kind of a contract and in the same way. As we held that an action at law would not lie in that case because there was no breach, and that the remedy of the plaintiff was in equity, we are compelled to hold the same way in this case. The plaintiff had no right to sue for damages before the time for performance by the defendant had arrived. He had sustained no damages, for the policy was still in force, and if it refused to *Page 21 recognize its obligation thereunder he could compel recognition by a judgment exactly adapted to the situation.
The judgment below should be reversed and a new trial granted, with costs to abide event.