People v. Dykeman

Appellate Division of the Supreme Court of New York

People v. Dykeman

229 A.D. 251, 241 N.Y.S. 343, 1930 N.Y. App. Div. LEXIS 10356

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

DecidedApril 7, 1930

StatusPublished

Cited by1 cases

This text of 229 A.D. 251 (People v. Dykeman) 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

People v. Dykeman, 229 A.D. 251, 241 N.Y.S. 343, 1930 N.Y. App. Div. LEXIS 10356 (N.Y. Ct. App. 1930).

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Opinions

Per Curiam.

We are of opinion that the presumption of legitimacy has been overcome by the evidence and admissions in this case. (Matter of Findlay, 253 N. Y. 1.) The sole question remaining for determination is whether or not there is competent proof in this case of non-access of the complainant’s husband. While section 126 of the Domestic Relations Law (as added by Laws of 1925, chap. 255) makes competent the testimony of both the mother and the alleged father in filiation proceedings, we are of opinion that it was not the intent of the Legislature to change the rule and make competent the testimony of a married woman as to non-access of her husband. In this case, however, the question was not raised. The complaining -witness testified, without objection, that she last lived with her husband (meaning last cohabited with him) four years ago. The question was not raised by the objection to the following question as to whether or not any other man besides her husband and the defendant had had intercourse with her and by the exception to the court’s ruling, permitting an answer. There is no exception to any other ruling in the record which raises this question.

In the interests of justice the order of filiation should be affirmed.

Lazansky, P. J., Young, Hagarty and Carswell, JJ., concur; Tompkins, J., dissents, with the following memorandum:

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Per Curiam.

We are of opinion that the presumption of legitimacy has been overcome by the evidence and admissions in this case. (Matter of Findlay, 253 N. Y. 1.) The sole question remaining for determination is whether or not there is competent proof in this case of non-access of the complainant’s husband. While section 126 of the Domestic Relations Law (as added by Laws of 1925, chap. 255) makes competent the testimony of both the mother and the alleged father in filiation proceedings, we are of opinion that it was not the intent of the Legislature to change the rule and make competent the testimony of a married woman as to non-access of her husband. In this case, however, the question was not raised. The complaining -witness testified, without objection, that she last lived with her husband (meaning last cohabited with him) four years ago. The question was not raised by the objection to the following question as to whether or not any other man besides her husband and the defendant had had intercourse with her and by the exception to the court’s ruling, permitting an answer. There is no exception to any other ruling in the record which raises this question.

In the interests of justice the order of filiation should be affirmed.

Lazansky, P. J., Young, Hagarty and Carswell, JJ., concur; Tompkins, J., dissents, with the following memorandum:

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Bluebook (online)

229 A.D. 251, 241 N.Y.S. 343, 1930 N.Y. App. Div. LEXIS 10356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dykeman-nyappdiv-1930.

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