Phillips v. Tagliavini

275 A.D.2d 1037

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1949
• Status: Published

Opinion

Per Curiam.

Defendant appeals from an order of filiation made by a divided court after trial in the Court of Special Sessions, adjudging defendant father of complainant’s child, ordering support, expenses and a counsel fee to the complainant’s attorney.

The courts have frequently laid down the rule that in an action of this kind, in which the charge is so easy to make and so difficult to defend, the evidence required to sustain an order of filiation should be “entirely satisfactory” (Drummond v. Dolan, 155 App. Div. 449; Commissioner of Public Welfare v. Ryan, 238 App. Div. 607; Commissioner of Public Welfare v. Kotel, 256 App. Div. 352). After scrutiny of this record, we find that the evidence to support the finding made by the majority of the court below is clearly insufficient under the rule laid down by the authorities and that the order of filiation in this ease should be reversed as against the weight of the credible evidence. The complainant’s testimony when read in the light of defendant’s evidence, the testimony of his witnesses, and the documentary evidence, is shown to be so unreliable and unworthy of belief that on the whole record the preponderance of the credible evidence is in defendant’s favor. In view of this conclusion and of the nature of the case, it is unnecessary here to review the evidence.

The order of filiation appealed from should be reversed and the complaint dismissed.

Peck, P. J., Glennon, Dore, Callahan and Van Voorhis, JJ., concur. Judgment and order unanimously reversed and the complaint dismissed.