140 N.Y.S. 307 | N.Y. App. Div. | 1913
This appeal is from an order of filiation made by a divided court. As the proceeding is quasi criminal (People ex rel. Mendelovich v. Abrahams, 96 App. Div. 27; sub nom. People ex rel. Commissioner v. Abrahams, 105 id. 498), the evidence of guilt should be entirely satisfactory. (People v. McKay, 72 App. Div. 527.) Moreover, the charge is so easy to make and so hard to defend that there should be sedulous scrutiny of the record. (Burke v. Burpo, 75 Hun, 568.) The charge is supported only by the testimony of the woman and of her mother, of whom the latter but testifies to a promise of reparation by marriage, made by the defendant in the presence of the two women. As the complainant testifies to a number of illicit acts, it was virtually impossible to contradict her as to them by any testimony other than denials thereof. And there is no direct proof that the woman at the time of her alleged relations with the defendant was of such loose morals as to make the paternity of any particular person doubtful.
Besides the evidence of the defendant, who denies his paternity and his alleged admissions, Miss Hawkins testifies in contradiction of the complainant that, on April 1, 1910, she introduced the man and woman to one another, who at that time had demeaned themselves as strangers. Mrs. Chesterton, the sister of the complainant, testifies as to an intimacy between her sister and Elsas, who she says had been accustomed to sleep with her sister in their house, and whom she had seen in bed with her sister. She further testifies that when she complained to her mother, the latter put her out of doors. It is quite true that she does not identify the time when she saw her sister and Elsas in bed together until after August, 1910. Miss Laffie testifies to seeing an act of great familiarity between the complainant and Elsas in July. Proof was given of the reputation of the defendant for decency and morality. Although the sole issue was the paternity of the defendant, and the question was not whether all that was said about it was true (Burns v. Donoghue, 185 Mass. 71), nevertheless, in the face of the practical impossibility of direct con
Hirschberg, Burr, Woodward and Rich, JJ., concurred.
Order vacated, with costs, and new trial ordered.