Commissioner of Public Welfare v. Ladutko

256 A.D. 775, 11 N.Y.S.2d 747, 1939 N.Y. App. Div. LEXIS 4844

Opinions

Martin, P. J.

I concur in the opinion of Mr. Justice Cohn that incompetent evidence was received.

I vote to reverse and dismiss the proceeding on the additional ground that the evidence in this case does not sustain the finding of the court that the defendant was the father of the complainant’s child. The evidence offered to prove that fact was unsatisfactory and insufficient, particularly in view of the strong presumption of legitimacy. The documentary evidence in the record discloses that the complainant’s child was born on February 15, 1929, at which time the complainant was married to her first husband, William Dubronski, from whom she obtained a divorce on February 20, 1930. This proceeding was not instituted until 1938, at which time the child of the complainant was more than nine years of age.

The order appealed from should be reversed and the proceeding dismissed.

Townley and Callahan, JJ., concur; O’Malley, J., dissents and votes to affirm; Cohn, J., dissents from the dismissal of the proceeding and votes for reversal and a new trial.