
    The Columbian National Life Insurance Company, Respondent, v. Barnet Hirsch, Appellant.
   Judgment reversed on the law, with costs, and judgment directed for the defendant dismissing the complaint upon the merits, with costs. In our opinion, the clauses contained in the policies in question, providing that they should be incontestable after one year during the lifetime of the insured, from date of issue, bar the plaintiff from the relief sought in its complaint by way of rescission of the policies. (Wright v. M. B. L. Association, 118 N. Y. 237; Teeter v. United Life Ins. Assn., 11 App. Div. 259; affd., 159 N. Y. 411.) We are further of the opinion that the fact that the appellant, prior to the trial, moved to dismiss the complaint as not stating a cause of action, which motion was denied and no appeal from the order entered thereupon taken, does not preclude him from raising the question on this appeal. (Ansorge v. Kane, 244 N. Y. 395; McCargo v. Jergens, 206 id. 363.) Conclusions of law inconsistent herewith are reversed and new conclusions will be made. Lazansky, P. J., Young and Kapper, JJ., concur; Hagarty and Davis, JJ., dissent and vote to affirm on the ground that there are findings of fact to the effect that there was a fraudulent plan and an unlawful conspiracy between the beneficiaries and other persons who had no insurable interest in the life of the insured but who furnished the premiums on the policy, whereby a policy should be taken out on the life of the defendant although he was not then in good health and not an insurable risk, with the purpose of dividing the benefits between them; and there is evidence supporting such findings. In such a case, the policy is void at its inception and the one-year incontestable clause in the policy has no application. The doctrine of incontestability is one which applies solely to the contract of the insured, and not to one where conspirators carry out a preconceived design to defraud the insurer using the insured merely as a tool in their machinations. The rule of incontestability, if applied in such a case, would legalize unconscionable swindles, conspiracies and wagering contracts. Settle order on notice.  