Hodson v. Hoff

262 A.D. 752, 27 N.Y.S.2d 497, 1941 N.Y. App. Div. LEXIS 5742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1941
• Status: Published

Opinion

In each of three separate proceedings instituted by the commissioner of welfare of the city of New York on the complaint of Bertha Hoff, in the Court of Special Sessions of the City of New York, Borough of Brooklyn [County of Kings], an order was made on June 25, 1940, after trial, denying an order of filiation and discharging defendant. From such orders the commissioner appeals. Orders severally reversed on the law and a new trial ordered in each of the three proceedings. In our opinion the undisputed proofs established that the complainant was not married to the defendant, and that the defendant was the father of her three children, each of whom was born out of wedlock. The testimony of the complaining witness that she was “ married ” to the defendant was a mere conclusion of law, not rising to the dignity of evidence. (Matter of Smith, 136 Misc. 863; Tracy v. Frey, 95 App. Div. 579, 587-591.) The proofs before the court below required the entry of an order of filiation in each of the three proceedings. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.