This appeal presents the question of whether the Ontario guest statute is available as a defense in an action brought in New York State for wrongful death on behalf of the estate of a Canadian domiciliary (plaintiff) against the estate of a New York State domiciliary (New York defendant) and the Canadian National Railway Company (Canadian defendant). The action arose out of an accident occurring in Ontario, Canada in which the plaintiff, an Ontario domiciliary, was a gratuitous passenger in an automobile ■owned and driven by the New York defendant and licensed, insured and garaged in New York State.
On May 7, 1969, the New York defendant drove his car from Buffalo, New York to Fort Brie, Ontario, Canada where he picked up plaintiff. The two thereupon departed for Long Beach, Ontario to prepare for the renting season several cottages owned by the New York defendant. At a railroad grade crossing in the Town of Sherkston, Ontario, the car in which decedent was a passenger, collided with a freight train owned and operated by the Canadian National Railway Company. As a result of the collision, both the plaintiff and the New York defendant were killed instantly.
In this action for wrongful death based on negligence, the New York defendant interposed as an affirmative defense the Province of Ontario guest statute which provides that ‘ ‘ the owner or driver of a motor vehicle * * * is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in * * * the motor vehicle, except where such loss or damage was caused or contributed to by the gross negligence of the driver of the motor vehicle.” (Ontario Rev. Stat. of 1960, ch. 172, § 105, subd. [2], as amd. by Stat. of 1966, ch. 64, § 20, subd. [2]).
Plaintiff moved to dismiss the affirmative defense on the ground that the Ontario guest statute conflicts with the law of New York State. Special Term held that the guest statute was applicable and denied the plaintiff’s motion.
*74This .appeal requires’ us to resolve a choice-of-law problem left undecided in Tooker v. Lopez (24 N Y 2d 569). Looker arose from an accident in Michigan involving an automobile driven by a New York domiciliary, owned by the driver’s father, also a New York domiciliary, and registered and insured in New York. Plaintiff’s decedent, a passenger in the vehicle, was also a New York domiciliary. The other passenger, a Michigan domiciliary, was injured. In an action for wrongful death commenced by the estate of the New York passenger, the defendant interposed the Michigan guest statute as an affirmative defense. The court, in attempting to resolve the apparent inconsistencies in cases dealing with the application of guest statutes, reaffirmed the rejection in Babcock v. Jackson (12 N Y 2d 473) of the mechanical rule of lex loci delicti, disapproved the rule of contact counting, and adopted a choice-of-law rule which resulted in rejection of the guest statute defense in favor of the application of New York law. Although the court was obviously concerned with the possibility of inconsistent results in actions maintained by nondomieiliary passengers (see 24 N Y 2d, pp. 580, 585, 592, 597), it left undecided the question of whether New York law governs where the plaintiff passenger is a domiciliary of a jurisdiction having a guest statute and the accident occurs in that jurisdiction (24 N Y 2d, p. 580).
Judge Keating, writing in Looker for the majority, stated:
‘ ‘ Applying the choice-of-law rule which we have adopted, it is not an ‘ implicit consequence ’ that the Michigan passenger injured along with Miss Lopez should be denied recovery. Under the reasoning adopted here, it is not at all clear that Michigan law would govern.” (24 N Y 2d, at p. 580).
However, Chief Judge Fuld indicated/that the law of the State where the accident occurred would be controlling. He states, after setting forth three guidelines, two of which are not applicable here: ‘ ‘ In other situations, when the passenger and the driver are domiciled in different states, the rule is necessarily less categorical. Normally, the applicable rule of decision will be that of the state where the accident occurred but not if it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants. (Of. Restatement, 2d, Conflict of Laws, P.O.D., pt. II, §§ 146,159.) ” (24 N Y 2d, at p. 585).
Judge Burke, in his concurring opinion, thought it not at all clear that the Michigan resident could recover even if she brought an action against defendant in New York and that:
*75“ While the .result reached by the court today may well serve as the basis for a new rule for this State in guest statute cases, it cannot purport to solve the unanticipated factual situations which, no doubt, will confront us shortly.” (24 N Y 2d, at p. 592).
Judge Bbeitel, in a dissenting opinion, concerned that the determination by implication precluded recovery for the Michigan resident and fearing that anomalies might result out of the same accident, with unpredictability and lack of consistency in determinations, wrote: “ it is hard to accept the implicit consequence that Miss Silk, the Michigan resident injured in the accident, should not be able to recover in Michigan (and presumably in New York) but a .recovery can be had for her deceased fellow-passenger in the very same accident.” (24 N Y 2d, at p. 597).
As noted by Chief Judge Ftjld, the normally applicable rule of decision should be that of the place where the accident occurred unless the forum has a superior interest in applying its own law. (Cf. Tooker v. Lopez, 24 N Y 2d 569, 585, Fuld, Ch. J., concurring.) In the instant case New York has no interest that would justify displacing that normally applicable rule. The instant case is thus distinguishable from those choice-of-law cases that have been passed upon by the Court of Appeals. (E.g., Tooker v. Lopez, 24 N Y 2d 569, 576; Miller v. Miller, 22 N Y 2d 12, 18; Matter of Crichton, 20 N Y 2d 124, 133-134.)
The majority’s reliance on subdivision 4 of section 311 of the Vehicle and Traffic Law is misplaced. That section requires that insurance policies issued in New York cover liability for injuries regardless of where the .accident takes place. The purpose of the statute is to assure that New York owners and drivers are financially responsible. The statute does not purport to impose liability where none would otherwise exist. We must observe that Judge Keating’s statement (p. 577) that the Legislature 1 ‘ has evinced commendable concern not only for the residents of this State, but residents of other States who may be injured as a result of the activities of New York residents ” was in the context, not of proving that New York had a governmental interest in overriding foreign rules of liability, but of demonstrating that it was immaterial in that case that the driver and passenger, while domiciliaries of New York, were attending college in Michigan. While New York may be a proper forum for actions involving its own domiciliaries, regardless of where the accident happened, it does not follow that we should apply New York law simply because some may think it is a better rule, where doing so does not advance any New York State *76interest, nor the interest of any New York State domiciliary.
The argument that we should' refuse to apply the Ontario guest statute in this instance to avoid disparate treatment of passengers, depending upon their domicile, is not persuasive. As noted by Judge Keating, in the majority opinion in Tooker (p. 580): “ Any anomaly [in result] * * * is ‘ the implicit
consequence ’ of a Federal system which, at a time when we have truly become one nation, permits a citizen of one State to recover for injuries sustained in an automobile accident and denies a citizen of another State the right to .recover for injuries sustained in a similar accident. The anomaly does not arise from any choice-of-law rule.”
Further, we have here an additional complication because of the .presence of a Canadian defendant. A plaintiff’s recovery in New York against the New York State defendant and the Canadian defendant might have a much different effect in terms of the proportionate share of the judgment which each defendant might be required to pay. This is so since a judgment against the two defendants would make them jointly and severally liable for payment under section 105 of the Highway Traffic Act of the Revised Statutes of Ontario of 1960 as amended. Therefore, the Canadian defendant, if New York law is applied, might be called upon to pay more than it would if Ontario law was applied.
Accordingly, the orders appealed from should be affirmed.
Del Vecchio, J. P., and Gabrielli, J., concur with Cardamone, J.; Moule, J., dissents and votes to affirm in an opinion, in which Henry, J., concurs.
Orders reversed, with costs, and motions granted.