Abrahams v. Dickens

Appellate Division of the Supreme Court of New York

Abrahams v. Dickens

17 A.D.2d 846, 233 N.Y.S.2d 259, 1962 N.Y. App. Div. LEXIS 7586

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 22, 1962

StatusPublished

This text of 17 A.D.2d 846 (Abrahams v. Dickens) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abrahams v. Dickens, 17 A.D.2d 846, 233 N.Y.S.2d 259, 1962 N.Y. App. Div. LEXIS 7586 (N.Y. Ct. App. 1962).

Pincite

Opinion

In a proceeding pursuant to section 122 of the Domestic Relations Law, to establish the defendant’s paternity of a child born out of wedlock and to compel defendant to support said child, the complainant appeals from an order of the Children’s Court, Dutchess County, entered November 14, 1961 upon the opinion-decision of the court after a non jury trial, dismissing the complaint. Order reversed on the facts, without costs, and proceeding remitted to the court below for further proceedings not inconsistent herewith and for the entry of an appropriate decree. Findings of fact which may be inconsistent herewith are reversed and new findings are made as indicated herein. In our opinion, the evidence adduced established clearly the defendant’s paternity of the child born to the complainant on July 28, 1959. It is true that prior to such date the complainant was a person of doubtful virtue. It appears she and defendant had engaged in an act of coition in the front seat of a parked car in the presence of another couple who were similarly engaged on the back seat; and that on the occasion of complainant’s first sexual experience with defendant she was no virgin. However, despite her character and her prior acts the fact remains that the defendant has unequivocally admitted that on the crucial date in issue they had engaged in coitus without the use of any contraceptive device. Moreover, the record is barren of any testimony that, during the controlling period, anyone other than this defendant could have been the father. Accordingly, in the exercise of our statutory power to determine the issues of fact (Civ. Prae. Act, § 584), we adjudge defendant to be the father of complainant’s child. We remit the proceeding to the trial court, however, for its determination of the quantum of support for the child and for the entry of an appropriate decree. Incident to such determination the trial court may hold such further hearings and take such further proof as may be relevant and necessary. Christ, Hill and Rabin, JJ., concur; Ughetta, Acting P. J., and Kleinfeld, J., dissent and vote to affirm the order on the opinion-decision of the court below.

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In a proceeding pursuant to section 122 of the Domestic Relations Law, to establish the defendant’s paternity of a child born out of wedlock and to compel defendant to support said child, the complainant appeals from an order of the Children’s Court, Dutchess County, entered November 14, 1961 upon the opinion-decision of the court after a non jury trial, dismissing the complaint. Order reversed on the facts, without costs, and proceeding remitted to the court below for further proceedings not inconsistent herewith and for the entry of an appropriate decree. Findings of fact which may be inconsistent herewith are reversed and new findings are made as indicated herein. In our opinion, the evidence adduced established clearly the defendant’s paternity of the child born to the complainant on July 28, 1959. It is true that prior to such date the complainant was a person of doubtful virtue. It appears she and defendant had engaged in an act of coition in the front seat of a parked car in the presence of another couple who were similarly engaged on the back seat; and that on the occasion of complainant’s first sexual experience with defendant she was no virgin. However, despite her character and her prior acts the fact remains that the defendant has unequivocally admitted that on the crucial date in issue they had engaged in coitus without the use of any contraceptive device. Moreover, the record is barren of any testimony that, during the controlling period, anyone other than this defendant could have been the father. Accordingly, in the exercise of our statutory power to determine the issues of fact (Civ. Prae. Act, § 584), we adjudge defendant to be the father of complainant’s child. We remit the proceeding to the trial court, however, for its determination of the quantum of support for the child and for the entry of an appropriate decree. Incident to such determination the trial court may hold such further hearings and take such further proof as may be relevant and necessary. Christ, Hill and Rabin, JJ., concur; Ughetta, Acting P. J., and Kleinfeld, J., dissent and vote to affirm the order on the opinion-decision of the court below.

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Bluebook (online)

17 A.D.2d 846, 233 N.Y.S.2d 259, 1962 N.Y. App. Div. LEXIS 7586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abrahams-v-dickens-nyappdiv-1962.