(dissenting). When the Legislature in 1937 enacted section 57 of the Domestic Relations Law, which permitted actions between spouses involving torts, it also added subdivision 3 of section 167 of the Insurance Law which provides that “ No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse unless express provision relating specifically thereto is included in the policy ”.
In Fuchs v. London & Lancashire Ind. Co. (258 App. Div. 603, 605) the court, in discussing those amendments, said: ‘1 These simultaneous enactments disclose a considered legislative intent to create a right of action theretofore denied, and at the same time to protect insurance carriers against loss through collusive actions between husband and wife ”.
In the instant case the plaintiff insurance company issued an automobile liability insurance policy to the defendant on June 19, 1957 at which time defendant was a resident of Westchester County, New York. In September, 1957, the insured moved to Greenwich, Connecticut, and became a domiciliary of that State; and the automobile insured was thereafter garaged in Connecticut. Upon being notified of that change in residence, plaintiff insurance company issued an indorsement to the policy, which changed the insured’s residence; and, at the same time, paid the insured a return premium, the amount of which was based on the lower Connecticut rates. While the insured was operating the automobile in Connecticut on March 22, 1958, there was an accident with another automobile owned by a Connecticut resident. At the time, the insured’s wife was a passenger in his car and she subsequently commenced an action in Connecticut against her husband and the owner of the other vehicle. When the husband forwarded the process to plaintiff herein, and demanded that plaintiff defend the action on his behalf and pay any judgment that might be recovered against him therein, plaintiff refused on the ground that the policy did not afford coverage for the claim asserted by the wife.
Plaintiff then began the instant action for a declaratory judgment that it is not obligated under the policy of automobile liability insurance to defend the personal injury suit brought by the wife against the insured in Connecticut.
The majority of this court now holds that the contract of insurance is a New York contract, is governed by the laws of New York and that the provisions of subdivision 3 of section 167 of the Insurance Law must be read into the policy to exclude coverage by plaintiff company. In so doing, the majority pro*337ceeds upon a conceptualistic formula wholly divorced from the realities of the situation.
In Auten v. Auten (308 N. Y. 155) the Court of Appeals abandoned any unitary formula in determining the law to govern a contract where a conflict of laws problem was presented. Instead, the concept was adopted that the test to be applied was the so-called “center of gravity” or the “grouping of contacts ” theory of the conflict of laws. As Judge Ftjld said (p. 160): “ Under this theory, the courts, instead of regarding as conclusive the parties’ intention or the place of making or performance, lay emphasis rather upon the law of the place ‘ which has the most significant contacts with the matter in dispute ’.”
Apart from this approach to the problem, is the additional factor that we are dealing with an insurance contract, where the terms do not rise out of a bargaining process but are fixed beforehand either by the insurance company or the government, or both. (See Ehrenzweig, Adhesion Contracts in the Conflict of Laws, 53 Col. L. Rev. 1072.)
What is the most significant contact in the matter in dispute? In making the indorsement on the policy, the insurance company knew that the insured was then domiciled in Connecticut and that the automobile would be garaged and presumably principally used there. That essential fact immediately distinguishes this case from all of the other cases dealing with related problems. The majority agrees that New Amsterdam Cas. Co. v. Stecker (1 A D 2d 629, affd. 3 N Y 2d 1) is not applicable to the case at bar. However, the reason for its inapplicability calls for a result contrary to the one the majority reaches in this case. There, as here, the accident occurred in Connecticut and the husband sued his wife, the insured, in Connecticut. But since the insured and her husband were residents of New York and the insured’s car was garaged in New York, the courts found that the public policy of New York, as expressed in subdivision 3 of section 167 of the Insurance Law, was applicable to them, and relieved the insurance company of the duty to defend or pay.
Clearly the domestic policy of New York has no extraterritorial effect so as to encompass domiciliarles of other States. The responsibility for regulating incidents of the marital relationship is the primary concern of the State of domicile of the spouses. In enacting section 57 of the Domestic Relations Law which permitted actions between spouses involving torts, New York could only speak for its own domiciliarles and could not project its law into another State. Hence, subdivision 3 of sec*338tion 167 of the Insurance Law, enacted at the same time, would equally be restricted to insurance policies written in New York for persons residing there, since, as stated in New Amsterdam Cas. Co. v. Stecker (supra, p. 7): The manifest purpose of subdivision 3 of section 167 was to protect insurance carriers from collusive actions between spouses arising out of automobile accidents ’’- — actions which were specifically authorized by the amendment to section 57 of the Domestic Relations Law. The public policy expressed in both statutes was for the benefit of New York residents. Thus, in dealing with the problem at hand, the place where the insured lives and the place where the automobile is used are the most appropriate criteria for the determination of the risk insured.
It is not merely coincidental that in those cases in which subdivision 3 of section 167 of the Insurance Law has been applied it appears that the insured was a resident of New York when the accident occurred. (See Mertz v. Mertz, 271 N. Y. 466, 469; Coster v. Coster, 289 N. Y. 438, 440; New Amsterdam Cas. Co. v. Stecker, supra; General Acc. Assur. Corp. v. Ganser, 2 Misc 2d 18; Merchants Ind. Corp. of N. Y. v. Seward, 12 Misc 2d 638.)
When the plaintiff made the change of address indorsement on the policy and rebated a part of the premium originally paid, it accepted the insured in his status of a resident of Connecticut, or at least on the basis that his car was garaged in Connecticut. The insurance company could not validly presume that a statute in New York expressing the public policy of New York would have extraterritorial effect on a Connecticut resident and his automobile. It was then on notice that thereafter it would have to look to the Connecticut law to determine what terms of the policy were sanctioned. The emphasis on the place where the contract was issued, i,e., New York, became subordinate to Connecticut, where the two substantial elements of the risk insured were present — the residence of the insured and the place where the automobile was kept and used. When proper weight is given to these criteria, they must be regarded as such significant contacts as to be decisive in a pragmatic determination of the applicable law.
We should therefore hold that, after the indorsement of change of address and the rebate of part of the premium, the policy issued by plaintiff to the insured no longer was governed by New York law but was to be construed under the Connecticut law.
Since the determination of plaintiff’s liability under the policy depends upon Connecticut law, we should leave the question for *339Connecticut to decide. Our own statutes and our public policy are designed to protect New York domiciliaries, and we should accord to a sister State the same privilege of adjudicating the rights of its residents. This is especially so in the field of automobile liability insurance where present conditions have prompted the enactment of legislation by many States to protect their residents from the uninsured motorist and to allocate State funds to accomplish that purpose.
Since the granting of relief in an action for declaratory judgment is discretionary (Rules Civ. Prac., rule 212), we may properly refuse to declare what a Connecticut court might do in determining the question of the applicable internal law of Connecticut. Were the action before us one for damages for alleged breach of the duty to defend, we would be required to reach a determination on the merits, applying the appropriate conflict of law doctrines. But we need not do so in the instant action where we may decline to pronounce any declaratory judgment. In all propriety, we should leave the question of the impact of subdivision 3 of section 167 of the Insurance Law of this State upon the policy in suit to a forum in Connecticut because not only will the Connecticut court be more expert in declaring the internal law of that State but in addition such procedure will attain the more desirable result of uniform treatment to Connecticut residents.
Accordingly, we should affirm the denial of plaintiff’s motion for summary judgment and should grant judgment in favor of defendant dismissing the complaint in the exercise of our discretion to decline to pronounce a declaratory judgment for the reasons hereinabove stated.
Rabin and Eager, JJ., concur with Stevens, J.; Valente, J., dissents and votes to affirm the denial of plaintiff’s motion for summary judgment and grant judgment in favor of defendant-respondent dismissing the complaint in opinion, in which Botein, P. J., concurs.
Order, entered April 5, 1960, denying plaintiff’s motion for summary judgment, reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to the appellant, the motion for summary judgment granted, with $10 costs, and summary judgment directed in favor of plaintiff-appellant. Settle order on notice.