(dissenting). The appellant filed a complaint in the Court of Special Sessions alleging that she was a resident of the City of New York and that respondent is the father of her child born out of wedlock in December, 1955. Defendant moved to dismiss the complaint upon the ground that there was in existence a binding agreement between the parties that was a bar to this action. The motion was granted.
It appears that defendant is a man of considerable wealth residing in the State of Illinois but sojourning from time to time in New York. The parties met in this State in 1954 where complainant had resided since 1947. During her pregnancy complainant went to Illinois at the invitation of defendant where the child was bom. Thereafter, she returned to this State but acting upon instructions of defendant’s attorney returned to Illinois.
There in January, 1956 the parties entered into an elaborate agreement covering some 12 pages in the printed record. The agreement recites that both parties were of Chicago but appellant claims that she is and has been a resident of this State. The agreement was signed by appellant in Illinois but she swears and defendant does not deny that he executed the contract in this State. It is conceded that the agreement was never approved by any court of competent jurisdiction.
The motion to dismiss was granted in an opinion of two sentences stating that the agreement was a bar to the present action. We are unable to agree with this summary disposition of the matter. It may be surmised that this conclusion was reached by virtue of the provisions of section 63 of the New York City Criminal Courts Act, section 121 of the Domestic Relations Law and the pertinent Illinois statute. (Rev. Stat. of 111., ch. 17, § 18, in effect prior to July 5, 1957.) The latter statute stated in substance that court approval of such a compromise was not required if the agreement provided for the payment to the mother of any sum not less than $800. All of this was repealed in 1957 and the foreign State now operates under a statute more similar to ours.
If it could be found as a fact that complainant was at all times from December, 1955 to the present a resident of this *436State we would have presented the issue as to whether the agreement could bar the present proceeding, since it is contrary to the public policy of this State. Such public policy of this State in this area of the law has been recently stated (cf. Schaschlo v. Taishoff, 2 N Y 2d 408, 411). If such residence was established the fact that the agreement provides that it shall be governed by the laws of Illinois would not necessarily prevent the courts of this State from exploring its validity inasmuch as the agreement has not been judicially approved. It has recently been stated that “ The validity of a contract is determined by the local law of the state chosen by the parties for this purpose unless * * * (c) application of the chosen law would be contrary to a fundamental policy of the state which would be the state of the governing law in the absence of an effective choice by the parties.” (Restatement, 2d, Conflict of Laws, Tentative Draft No. 6, § 332-a.)
Here there was sufficient contact with this State by the contracting parties to at least require further exploration of the facts. It must be conceded that the present record is inadequate to make a determination. It is not clear from the affidavits before us as to the exact residence of the complainant during the years from 1955 to the present. She claims residence in this State from 1947 to the present ‘ ‘ except for a residence in California as will be shown ” in the affidavit. The ensuing-statements as to residence in California are vague and indefinite. She was there from some indefinite period before the birth of the child. After the agreement was executed she received permission from defendant — in conformity with the agreement — to go to California where she lived for approximately two years.
In our opinion there should not have been a summary dismissal of the proceeding. It should be remitted to. the Court of Special Sessions for a hearing and proper findings as to complainant’s residence at the time of executing the agreement and during the ensuing years to the commencement of this proceeding. Thereupon, a disposition might be made of the motion to dismiss giving full consideration to the rights of the parties and the public policy of this State.
Breitel, J. P., and McNally, J., concur with Stevens, J.; Bastow, J., dissents and votes to remand in opinion, in which Valente, J., concurs.
Order, entered on March 11,1960, granting defendant’s motion to dismiss the complaint affirmed, without costs.