256 A.D. 884 | N.Y. App. Div. | 1939
Judgment and order reversed on the law, with costs, and complaint dismissed, with costs, on the ground that the accident, which was the puncture of the wall of the uterus during the performance of an abortion, occurred while the assured was submitting to an unlawful abortion, a heinous crime, and that a recovery on the policy is, therefore, against public policy. (Hatch v. Mutual Life Ins. Co., 120 Mass. 550; Wells v. New England Mutual Life Ins. Co., 191 Penn. St. 207; 43 A. 126; Collins v. Metropolitan Life Ins. Co., 27 Pa. Sup. Ct. 353.) All concur, except Crosby, J., who dissents and votes for affirmance on the grounds (1) that the verdict respecting the illegality of the operation was against the weight of the evidence, and (2) that the illegality of the operation was immaterial (Messersmith v. American Fidelity Co., 187 App. Div. 35; affd., 232 N. Y. 161), and Dowling, J., who dissents and votes for affirmance on the first ground stated above. (The judgment is for plaintiff in an action under two life insurance policies. The order denies a motion for a new trial.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.