Stern v. Klenk

277 A.D.2d 1095

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1950
• Status: Published

Opinion

Appeal from an order and judgment of the Court of Special Sessions of the City of New York, New York County, entered January 26, 1950, which dismissed the complaint in a proceeding for an order to fix the paternity of a child and also direct the father to support the infant.

Per Curiam.

At the close of plaintiff’s case, the trial court denied defendant’s motion to dismiss her prima facie ease. Defendant rested, adduced no proof whatever, renewed the motion to dismiss, and thereupon the court dismissed the complaint and discharged defendant.

In view of all the evidence adduced including plaintiff’s exhibits, claimed to be defendant’s handwriting, we think the judgment and order appealed from should be reversed and a new trial ordered. On retrial, steps should be taken to procure corroborative evidence if available including, e.g., hotel records, and to have issues concerning handwriting more adequately presented.

Whether the court on retrial will adhere to the determination originally reached after hearing additional testimony including any testimony of defendant or of any witnesses he may choose to call, is a matter that we leave entirely to the trial court as triers of the facts to determine; and we indicate no opinion of what the final result should be,

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Peek, P. J., Glennon, Dore, Van Voorhis and Shientag, JJ., concur. Judgment and order unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.