People ex rel. Cardwell v. Wood

7 A.D.2d 687, 179 N.Y.S.2d 314, 1958 N.Y. App. Div. LEXIS 4342

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1958
• Status: Published

Opinion

Appeal from an order of Children’s Court, Clinton County. The complainant in this filiation proceeding testified to having sexual intercourse with defendant-appellant more or less regularly from 1955 to July, 1957. The child was bom in August, 1957. Defendant did not testify in denial of the facts stated by complainant. There is abundant other proof that complainant and defendant were frequently in each other’s company during this period. Defendant’s proof does not show intimate relations by complainant with any other man; or even that she had any special friendship with, any other man during this period. We regard the factual showing of paternity to be fully adequate in this case. Although the Children’s Court Judge had the power to appoint a commissioner to take the testimony (Children’s Court Act, § 42), the responsibility of decision under that section rested with the court and not the commissioner and the court was warranted on this record in rejecting the commissioner’s view of the facts. The claim of appellant that the Judge should have had a personal consultation with the commissioner on the facts is unwarranted under the practice. The Judge was required to act on his own judgment of the facts established in the record. Order affirmed. Foster, P. J., Bergan, Herlihy and Reynolds, JJ., concur.