155

Lewis, Ch. J., Dye,

Fulo and Fboessel, JJ., concur with
Desmond, Oonway,
J.; J., dissents and votes to affirm upon
the opinion of Van Voobhis, J., in the Appellate Division; Van
Voobhis, J., taking no part.

Ordered accordingly.

Margarite Auten, Appellant, v. Harold Auten, Respondent.

Argued October 22, 1954; decided December 31, 1954.
156

Michael Alexander, Bernard B. Smith and Leonard H. Steibel

for appellant. I. The effect of the English separation action
upon the separation agreement must be determined in accord-
ance with the rule of law applied by the English courts. (Rennie
v. Rennie, 287 N. Y. 86; Lynde v. Lynde, 41 App. Div. 280, 162
N. Y. 405, 181 U. S. 183; Swift & Co. v. Bankers Trust Co., 280
N. Y. 135; Myles v. Cuba R. R. Co., 182 Misc. 169; Lann v. United
States Steel Works Corp., 166 Misc. 465; Matter of Palmer, 192
Misc. 385, 275 App. Div. 792; Graham v. First Nat. Bank of
Norfolk, 84 N. Y. 393; Hutchinson v. Ross, 262 N. Y. 381.)
 157

II. Even assuming, arguendo, that the effect of the English

separation action upon the separation agreement must be deter-
mined in accordance with the rule of law applied by the courts
of New York, the judgment of the Appellate Division affirming
Special Term cannot be sustained. (Woods v. Bard, 285 N. Y.
11; Krell v. Krell, 192 Misc. 1; Clark v. Kirby, 243 N. Y. 295;
Dimick v. Dimick, 230 App. Div. 99; Van Horn v. Van Horn, 196
App. Div. 472; Chamberlain v. Cuming, 37 Misc. 815; Estin v.
Estin, 296 N. Y. 308, 334 U. S. 541; Gifford v. Corrigan, 117 N. Y.
257; Rosmarin v. Rosmarin, 238 App. Div. 798; De Brauwere v.
De Brauwere, 203 N. Y. 460; Patino v. Patino, 195 Misc. 887,
278 App. Div. 756, 278 App. Div. 921.)
Saul Hammer for respondent. I. The separation agreement
sued upon is governed by the law of the State of New York.
(Bitterman v. Schulman, 265 App. Div. 486; Stumpf v. Hallahan,
101 App. Div. 383, 185 N. Y. 550; Vander Horst v. Kittredge,
229 App. Div. 126; Aronson v. Carobine, 129 Misc. 800; Rennie
v. Rennie, 287 N. Y. 86.) II. The law of the contract also gov-
erns the interpretation and legal effect of any acts urged as a
defense or discharge of the agreement. (Benton v. Safe Deposit
Bank, 255 N. Y. 260; Pritchard v. Norton, 106 U. S. 124.)
III. The law of domicile does not govern. (Vander Horst v.
Kittredge, 229 App. Div. 126; Graham v. First Nat. Bank of
Norfolk, 84 N. Y. 393; Hutchinson v. Ross, 262 N. Y. 381.)
IV. Appellant repudiated the agreement sued upon by
instituting suit against respondent for judicial separation.
(O’Brien v. O’Brien, 252 App. Div. 427; Hettich v. Hettich, 278
App. Div. 518; Woods v. Bard, 285 N. Y. 11; Krell v. Krell, 192
Misc. 1; Schmelzel v. Schmelzel, 287 N. Y. 21; Dimick v. Dimick,
230 App. Div. 99; Van Horn v. Van Horn, 196 App. Div. 472.)
V. In any event, appellant’s breach of the covenants of the
agreement barred any subsequent recovery thereunder.
(Duryea v. Bliven, 122 N. Y. 567; Haskell v. Haskell, 207 App.
Div. 723; Muth v. Wuest, 76 App. Div. 332; Matter of Noel, 173
Misc. 844; Cole v. Addison, 153 Ore. 688; Harwood v. Harwood,
182 Misc. 130; Roth v. Roth, 77 Misc. 673; Schmidt v. Schmidt,
74 Misc. 423.) VI. No rights survive to appellant after her
repudiation of the separation agreement.
158

Fuld, J. In this action to recover installments allegedly due

for support and maintenance under a separation agreement
executed in this state in 1933, the wife’s complaint has been
dismissed, on motion for summary judgment, upon the ground
that her institution of an action for separation in England
constituted a repudiation and a rescission of the agreement
under New York law. Determination of the appeal, involving
as it does a question of conflict of laws, requires examination
of the facts disclosed by the papers before us.
Married in England in 1917, Mr. and Mrs. Auten continued
to live there with their two children until 1931. In that year,
according to plaintiff, defendant deserted her, came to this
country and, in the following year, obtained a Mexican divorce
and proceeded to “ marry ” another woman. Unable to come to
terms with the ocean between them, plaintiff made a trip to New
York City to see and talk to defendant about adjustment of
their differences. The outcome was the separation agreement
of June, 1933, upon which the present action is predicated.
It obligated the husband to pay to a trustee, for the ‘‘ account
of ” the wife, who was to return to England, the sum of £50 a
month for the support of herself and the children. In addition,
the agreement provided that the parties were to continue to live
separate and apart, that neither should sue “ in any action
relating to their separation ” and that the wife should not
“ cause any complaint to be lodged against * * • [the
husband], in any jurisdiction, by reason of the said alleged
divorce or remarriage ”.
Immediately after the agreement was signed, plaintiff
returned to England, where she has since lived with her children,
and it is alleged by her — but disputed by defendant — that the •
latter is also domiciled in that country. Be that as it may,
defendant failed to live up to his agreement, making but a few
payments under it, with the result that plaintiff was left more
or less destitute in England with the children. About a year
after the agreement had been executed, in August of 1934,
plaintiff filed a petition for .separation in an English court,
charging defendant with adultery. Defendant was served in
New York with process in that suit on December 4, 1936, and,
in July, 1938, an order was entered requiring defendant to pay
alimony pendente lite. This English action — which, we are told.
 159

never proceeded to trial — was instituted upon advice of English

counsel that it “ was the only method ” by which she “ could
collect money ” from defendant; it was done, plaintiff expressly
declares, to “ enable ” her “ to enforce ” the separation agree-
ment, and not with any thought or intention of repudiating it.
The years passed, and in 1947, having realized nothing as a
result of the English action and little by reason of the New York
separation agreement, plaintiff brought the present suit to
recover the sum of $26,564, which represents the amount
allegedly due her, under the agreement, from January 1, 1935
to September 1,1947.
In his answer, defendant admitted making the agreement, but,
-by way of a separate defense — one of several-—-claimed that
plaintiff’s institution of the separation suit in England operated
as a repudiation of the agreement and effected a forfeiture of
her right to any payments under it. Following a motion by the
wife for summary judgment and a cross motion by the husband
for like relief, the court at Special Term granted the husband’s
cross motion and dismissed the complaint. The Appellate
Division affirmed, with leave to the wife, however, to serve an
amended complaint, asserting any cause of action which accrued
prior to the date of the commencement of the English suit. The
ensuing judgment, dismissing all of the wife’s claims which
accrued subsequent to that date, is a final judgment of modifica-
tion, and the wife’s appeal therefrom is properly before us as
of right. (306 N. Y. 752; see, also, Cohen and Karger, Powers
of the New York Court of Appeals, pp. 88-91, 222-223.)
Both of the courts below, concluding that New York law was
to be applied, held that under such law plaintiff’s commencement
of the English action and the award of temporary alimony
constituted a rescission and repudiation of the separation agree-
ment, requiring dismissal of the complaint. Whether that is the
law of this state, or whether something more must be shown to
effect a repudiation of the agreement (cf. Hettich v. Hettich,
304 N. Y. 8,13-14; Woods v. Bard, 285 N. Y. 11; Butler v. Butler,
206 App. Div. 214), need not detain us, since in our view it is the
law of England, not that of New York, which is here controlling.
Choosing the law to be applied to a contractual transaction
with elements in different jurisdictions is a matter not free from
160

difficulty. The New York decisions evidence a number of

different approaches to the question. (See, e.g., Jones v. Metro-
politan Life Ins. Co., 158 Misc. 466.)
Most of the cases rely upon the generally accepted rules that
“ All matters bearing upon the execution, the interpretation
and the validity of contracts * * * are determined by the
law of the place where the contract is made ”, while “ All
matter's connected with its performance * * * are regu-
lated by the law of the place where the contract, by its terms,
is to be performed.” (Swift & Co. v. Bankers Trust Co., 280
N. Y. 135, 141; Union Nat. Bank v. Chapman, 169 N. Y. 538, 543;
see, also, Zwirn v. Galento, 288 N. Y. 428; United States Mtge.
& Trust Co. v. Ruggles, 258 N. Y. 32, 38; Restatement, Conflict
of Laws, §§ 332, 358; Goodrich on Conflict of Laws [2d ed.,
1938], p. 293.) What constitutes a breach of the contract and
what circumstances excuse a breach are considered matters of
performance, governable, within this rule, by the law of the
place of performance. (See Richard v. American Union Bank,
241 N. Y. 163, 166-167; Restatement, Conflict of Laws, § 370;
Goodrich, op. cit., p. 293.)
Many cases appear to treat these rules as conclusive.
Others consider controlling the intention of the parties and
treat the general rules merely as presumptions or guideposts,
to be considered along with all the other circumstances. (See
Wilson v. Lewiston Mill Co., 150 N. Y. 314, 322-323; Stumpf v.
Hallahan, 101 App. Div. 383, 386, affd. 185 N. Y. 550; Grand v.
Livingston, 4 App. Div. 589, affd. 158 N. Y. 688.) And still
other decisions, including the most recent one in this court, have
resorted to a method — first employed to rationalize the results
achieved by the courts in decided cases (see Barber Co. v.
Hughes, 223 Ind. 570, 586) — which has come to be called the
“ center of gravity ” or the “ grouping of contacts ” theory
of the conflict of laws. 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 ”. (Rubin v. Irving Trust Co., 305 N. Y. 288,
305; see, also, Jones v. Metropolitan Life Ins. Co., supra, 158
Misc. 466, 469-470; Jansson v. Swedish American Line, 185
 161

F. 2d 21- 2;Barber Co. v. Hughes, supra, 223 Ind. 570; Boissevain

v. Weil, [1949] 1 K. B. 482, 490-492; Cook, “ Contracts ”
and the Conflict of Laws: “ Intention ” of the Parties, 32 Ill.
L. Rev. 899, 918-919; Harper, Policy Bases of the Conflict
of Laws: Reflections on Rereading Professor Lor'enzen’s Essays,
56 Yale L. J. 1155,1163-1168; Note, Choice of Law Problems in
Direct Actions Against Indemnification Insurers, 3 Utah L. Rev.
490, 498-499.)
Although this “ grouping of contacts ” theory may, perhaps,
afford less certainty and predictability than the rigid general
rules (see Note, op. cit., 3 Utah L. Rev. 490, 498), the merit of
its approach is that it gives to the place “ having the most
interest in the problem ” paramount control over the legal issues
arising out of a particular factual context, thus allowing the
forum to apply the policy of the jurisdiction “ most intimately
concerned with the outcome of [the] particular litigation ”
(3 Utah L. Rev., pp. 498-499). Moreover, by stressing the
significant contacts, it enables the court, not only to reflect the
relative interests of the several jurisdictions involved (see
Vanston Committee v. Green, 329 U. S. 156, 161-162), but also
to give effect to the probable intention of the parties and con-
sideration to “ whether one rule or the other produces the best
practical result (Swift & Co. v. Bankers Trust Co., supra,
280 N. Y. 135, 141; see Vanston Committee v. Green, supra,
329 U. S. 156, 161-162.)
Turning to the case before us, examination of the respective
contacts with New York and England compels the conclusion
that it is English law which must be applied to determine the
impact and effect to be given the wife’s institution of the
separation suit.1 It hardly needs stating that it is England
which has all the truly significant contacts, while this state’s
sole nexus with the matter in dispute — entirely fortuitous, at
that — is that it is the place where the agreement was made and
where the trustee, to whom the moneys were in the first
1. Our decision in Rennie v. Rennie (287 N. Y. 86) casts no light on the
problem. The court did not there consider whether it is the law of the place
where the separation agreement was made or of the jurisdiction where the
separation suit or other judicial proceeding was brought which determines the
effect that such action may have upon the agreement.
162

instance to be paid, had his office. The agreement effected a

separation between British subjects, who had been married in
England, had children there and lived there as a family for
fourteen years. It involved a husband who, according to the
papers before us, had willfully deserted and abandoned his wife
and children in England and was in the United States, when
the agreement was signed, merely on a temporary visa. And
it concerned an English wife who came to this country at
that time because it was the only way she could see her
husband to discuss their differences. The sole purpose of her
trip to New York was to get defendant to agree to the support
of his family, and she returned to England immediately after
the agreement was executed. While the moneys were to be paid
through the medium of a New York trustee, such payments
were “for account of” the wife and children, who, it was
thoroughly understood, were to live in England. The agreement
is instinct with that understanding; not only does it speak in
terms of English currency in providing for payments to the wife,
not only does it recite that the first payment be made to her
“ immediately before sailing for England ”, but it specifies
that the husband may visit the children “if he should go to
England ”.
In short, then, the agreement determined and fixed the marital
responsibilities of an English husband and father and provided
for the support and maintenance of the allegedly abandoned
wife and children who were to remain in England. It merely
substituted the arrangements arrived at by voluntary agree-
ment of the parties for the duties and responsibilities of support
that would otherwise attach by English law. There is no ques-
tion that England has the greatest concern in prescribing and
governing those obligations, and in securing to the wife and
children essential support and maintenance. And the paramount
interest of that country is not affected by the fact that the parties
separate and provide for such support by a voluntary agreement.
It is still England, as the jurisdiction of marital domicile and the
place where the wife and children were to be, that has the
greatest concern in defining and regulating the rights and duties
existing under that agreement, and, specifically, in determining
the circumstances that effect a termination or repudiation of the
agreement.
 163

Nor could the parties have expected or believed that any law
other than England’s would govern the effect of the wife’s insti-
tution of a separation action. It is most unlikely that the wife
could have intended to subject her lights under English law to
the law of a jurisdiction several thousand miles distant, with
which she had not the slightest familiarity. On the contrary,
since it was known that she was returning to England to live,
both parties necessarily realized that any action which she
took, whether in accordance with the agreement or in violation of
it, would have to occur in England. If any thought was given
to the matter at all, it was that the law of the place where she
and the children would be should determine the effect of acts
performed by her.
It is, perhaps, not inappropriate to note that, even if we were
not to place our emphasis on the law of the place with the most
significant contacts, but were instead simply to apply the rule
that matters of performance and breach are governed by the
law of the place of performance, the same result would follow.
Whether or not there was a repudiation, essentially a form of
breach (see Restatement, Contracts, § 318; 4 Corbin on Con-
tracts [1951], § 954, pp. 829-834), is also to be determined by the
law of the place of performance (cf. Wester v. Casein Co. of
America, 206 N. Y. 506; Restatement, Conflict of Laws, § 370,
Caveat), and that place, so far as the wife’s performance is
concerned, is England. Whatever she had to do under the
agreement — “ live separate and apart from” her husband,
“ maintain, educate and support ” the children and refrain
from bringing “ any action relating to [the] separation” —
was to be done in England. True, the husband’s payments were
to be made to a New York trustee for forwarding to plaintiff in
England, but that is of no consequence in this case. It might be,
if the question before us involved the manner or effect of payment
to the trustee, but that is not the problem; we are here concerned
only with the effect of the wife’s performance. (Cf. Zwirn v.
Galento, supra, 288 N. Y. 428, 433.)
Since, then, the law of England must be applied, and since, at
the very least, an issue exists as to whether the courts of that
country treat the commencement of a separation action as a
164

repudiation of an earlier-made separation agreement, summary

judgment should not have been granted.2
As to defendant’s further contention that, in any event, plain-,
tiff’s commencement of the English action amounted to a mate-
rial breach of her covenant not to sue, barring recovery upon the
agreement, we need but say that this question, too, must be
governed by English law, and for the same reasons already set
forth.
The judgment of the Appellate Division and that of Special
Term insofar as they dismiss the complaint should be reversed,
•
with costs in all courts, and the matter remitted for further
proceedings in accordance with this opinion.
Lewis, Ch. J., Conway, Desmond, Dye, Fboessel and Van
Voobhis, JJ., concur.
Judgments reversed, etc.

Reinforce, Inc., et al., Appellants, v. Hugh Birney, as President

of Local No. 46 N. Y. of the Wood, Wire & Metal Lathers’
International Union, et al., Respondents.
Argued October 4, 1954; decided December 31, 1954.

2. In point of fact, the English lawyers, whose affidavits have been submitted
by plaintiff, unequivocally opine that the institution of a separation suit and
the award of alimony pendente lite did not, under the law of England, constitute
a repudiation of the separation agreement or bar the present action to recover
amounts due under it.