Drummond ex rel. Simpson v. Zucker — 30 N.Y. Crim. 160

Majority

p. 160

SUPREME COURT—APP. DIV.__FIRST DEPARTMENT,

July, 1913.

MICHAEL J. DRUMMOND ex rel. DORA SIMPSON v. BARNET ZUCKER

(157 App. Div. 728.)

Headnote

Bastardy^[1] —Evidence when insufficient.

Evidence examined, and held, insufficient to sustain an order adjudging defendant to be the father of a child about to be born a bastard, and directing him to give a bond to secure the payment of certain sums for the support of the child after its birth, and for the support of the mother during her confinement.

Appeal by the defendant, Barnet Zuclter, from an order of filiation entered against him by the Court of Special Sessions of the City of New York on the 23d day of January, 1913.

David Michelsohn, for the appellant.

Terence Farley, for the respondent.

This appeal is from an order adjudging defendant to be the father of a child about to be born a bastard, directing him to pay two dollars and fifty cents a week after the birth of the child for its support, and ten dollars for the support of the mother during her confinement, and to give a bond in the penal sum of two hundred and fifty dollars to secure such payments.

We are of the opinion that the order should be reversed and

p. 161

the appellant discharged. The testimony of the mother of the child about to be born is substantially uncorroborated. It is so contradictory as to render it unworthy of belief, especially when read in the light of her previous history. She is twenty-three years of age, and admits having had two other children, though she has never been married. Appellant’s testimony, on the other hand, is corroborated in many respects by other witnesses, which, taken in connection with the other facts proved as to the situation and relation of the parties at the time of defendant’s alleged misconduct, satisfies us that he is not the father of the child and that the finding to that, effect is against the evidence.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and defendant discharged.

Present—Ingraham, P. J., McLaughlin, Clarke, Dowling and Hotchkiss, JJ.

Order reversed, with ten dollars costs and disbursements, and defendant discharged. Order to be settled on notice.