Plaintiff appeals from an order of the Special Term denying his motion for judgment upon the pleadings. The action is upon an automobile insurance or indemnity policy issued by defendant to plaintiff, whereby defendant “ agrees to indemnify the insured against loss or expense on account of bodily injuries, including death resulting therefrom, accidently suffered by any person or persons by reason of the maintenance, use, loading or unloading of any of the automobiles described in the application,” subject to certain conditions stated. There is, however, no condition against liability in case the automobile is being operated in violation of law or in the commission of a crime.
While this policy was in force an accident occurred while plaintiff’s son, by plaintiff’s direction, was operating plaintiff’s automobile described in the application, whereby the automobile was negligently and carelessly ran against a woman as she was alighting from a street car, causing injuries for which, after contested trial, she recovered judgment against plaintiff for $1,265.07, which plaintiff was compelled to pay. He thereupon brought this action to recover the amount so paid. The accident occurred on March 30, 1911.
*41By its answer herein defendant admits the issuance of the policy, the occurrence of the accident and the recovery against plaintiff on account thereof, and alleges as a sole defense that at the time said policy was issued it was impliedly agreed between the parties that the same was issued and accepted subject to the implied condition that plaintiff should abide by the laws of the State of New York touching the operation of said automobile and would not knowingly intrust the operation thereof to incompetent persons; that at the time of the occurrence of the accident the automobile was being operated by plaintiff’s son, Howard Messersmith, an infant under the age of eighteen years, not accompanied by a duly licensed chauffeur or by the owner, “ with the knowledge and consent and at the direction of this plaintiff and pursuant to plaintiff’s instructions, and said accident was directly caused by the improper and negligent conduct of the said infant so unlawfully operating the same; that at said time this plaintiff had full knowledge of the fact that said Howard Messersmith was an infant under the age of eighteen years.” The answer also alleged that under the laws of this State a person under the age of eighteen years was incompetent to operate an automobile except when accompanied by a duly licensed chauffeur, or the owner, and such operation was a misdemeanor and punishable criminally as such.
Plaintiff, deeming this defense insufficient in law, moved for judgment upon the pleadings and contends here that such motion should have been granted. In this contention, I think, plaintiff errs.
By subdivision 2 of section 282 of the Highway Law (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], as added by Laws of 1910, chap. 374) it is provided: “ No person shall operate or drive a motor vehicle who is under eighteen years of age, unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated.” By subdivision 1 of section 290 (as added by Laws of 1910, chap. 374)* the violation of any of the provisions of section 282 is made a misdemeanor punishable by a fine not exceeding fifty dollars.
*42I take it that a policy which, in express terms, should undertake to indemnify a person against loss occasioned by the operation of his automobile by an infant in violation of this statute would be void on its face. Such a contract made in contemplation of the commission of a criminal offense would be against public policy under all the authorities. The violation of this statute is a crime according to the definition of a crime in section 2 of the Penal Law, and as the allegation is that the plaintiff expressly directed his son to commit this crime, plaintiff became a principal in the crime by the express terms of this section of the Penal Law. Plaintiff’s cause of action arises out of his intentional violation of the criminal law. He has violated a statute enacted for the benefit and protection of the public, and I think we are bound to assume from the allegations of the answer that but for this violation the accident would not have occurred. The allegation is that “ said accident was directly caused by the improper and negligent conduct of the said infant so unlawfully operating the same.”
The lawmakers were of opinion that an infant under the age of eighteen years was not possessed of sufficient caution, judgment or experience to drive such a machine with safety to the public, and I think the fair meaning of the answer is that the accident was directly caused by permitting the machine to be operated by this infant so lacking in experience, caution and judgment, and that there was a causative connection between the violation of the statute and the injury to the woman. By this motion plaintiff concedes the facts to be as alleged in this answer and I think we should construe the answer liberally according to the fair intendment of the pleader and hold that defendant intends to allege that the accident was due to the violation of this statute and that but for such violation the accident would not have occurred. Nor do I understand plaintiff’s counsel to contend here that the answer should not be so construed. The test is: Will defendant be entitled to prove upon the trial that the accident was caused by the lack of judgment, caution and experience of plaintiff’s son due to his youth, or facts from which the jury may so infer? It seems to me that the answer is sufficient to permit defendant to go to the jury upon that question on proper proof and that *43defendant should not be foreclosed of that right by any narrow construction of its answer which clearly was intended to raise just that question. The charge is that plaintiff violated this statute knowingly and intentionally and not as a mere matter of negligence on his part.
I think the contract should be construed as not intended to protect plaintiff against the consequences of his own violation of the criminal law, that if it was so intended it was void, and that the courts are not open to plaintiff to prosecute a cause of action so arising. In Riggs v. Palmer (115 N. Y. 506) this principle was applied in denying to a beneficiary under a will a right to the property where he himself had killed the testator for the purpose of coming into his inheritance. In the course of the opinion of Judge Earl he says: “ Besides, all laws as well as all contracts may be controlled in their operation and effect by general fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.”
In Levy v. Kansas City, Kan. (168 Fed. Rep. 524), a case in the Circuit Court of Appeals for the Eighth Circuit, it was said in the head note (opinion by Sanborn, J.): “ It is a general rule of public policy and of law that no action may be maintained which arises out of the moral turpitude of the plaintiff or out of his violation of a general law enacted to effectuate the public policy of a state or nation.” Also, that “ The maintenance of actions to recover moneys or property lost, or damages sustained, through transactions or contracts wherein the plaintiffs were guilty of moral turpitude, or of the violation of a general law of public policy, is prohibited by this-rule, as well as the maintenance of actions to enforce such contracts.” In that case there was a general law of the State of Kansas prohibiting poolselling and bookmaking under a penalty of imprisonment and fine. The city council of Kansas City enacted an ordinance to the effect that any person might carry on the business of bookmaking *44and poolselling in that city for an annual license fee of $5,000. The plaintiff paid the city $5,000, and received a license which two days later the city canceled. Thereupon plaintiff brought an action to recover the $5,000, but he was denied the right to prosecute the action because he was held to have been guilty of a violation of the general law of the State. In McMullen v. Hoffman (174 TJ. S. 639) it was held that the courts would not lend their aid in any way towards carrying out the terms of an illegal contract, or enforce any alleged rights directly springing from such contract. In the course of the opinion by Mr. Justice Peckham it is said: “ There are several old and very familiar maxims of the common law which formulate the result of that law in regard to illegal contracts. They are cited in all law books upon the subject and are known to all of us. They mean substantially the same thing and are founded upon the same principles and reasoning. They are: Ex dolo malo non oritur actio; Ex pacto illicito non oritur actio; Ex turpi causa non oritur actio. The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal contract.”
A late expression as to the policy which should control the courts upon the general question is found in the opinion of Judge Werner in Hart v. City Theatres Co. (215 N. Y. 322) as follows: “ Courts will not be astute to sustain contracts when the effect will be to weaken the efficacy of laws and regulations designed for the protection of human life. Where a contract on its face, whether so intended by the parties or not, offends against statutes intended to promote public safety, the courts will not enforce it.”
These principles, I think, stand in the way of the plaintiff maintaining this action.
I think the order appealed from should be affirmed, with costs.
Kruse, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Since amd. by Laws of 1917, chaps. 174, 769, and Laws of 1918, chap. 549.— [Rep.