Sands v. Tufarolo

12 A.D.2d 893 | N.Y. App. Div. | 1961

Order of filiation, entered on April 3, 1959, unanimously reversed, on the law and on the facts, and the petition dismissed, without costs. Complainant asserts she became pregnant as the result of an act of intercourse with respondent on March 21, 1954. The child was born on December 15, 1954. While respondent admits he bad relations with complainant for some years prior to and following the alleged date of impregnation, he denies having had any intercourse during the months of February or March, 1954. In fact, it is not disputed that he did not return to New York from Florida until the middle of March, 1954. On the other hand, complainant admits having had sexual relations with another man repeatedly during the month of February, 1954; and on cross-examination, but only when confronted with her letter, she testified grudgingly that she had dined and shared an apartment with this man until early in March, 1954. Under the circumstances her disavowal of any relations with this man after February, 1954 must be scrutinized as closely as her unsupported fixation of the date of March 21, 1954 as the time she was made pregnant by respondent. Upon careful consideration of the conceded facts and the improbability of certain critical portions of complainant’s testimony, it cannot be held that the evidence is sufficiently satisfactory to sustain the order of filiation (Drummond v. Dolan, 155 App. Div. 449; Phillips v. Tagliavini, 275 App. Div. 1037). Appeal from order, entered on June 8, 1959, directing defendant to pay to the complainant the sum of $12 per week for the support of the infant, dismissed, without costs, having become academic by virtue of the decision of this court decided simultaneously herewith. Concur — Botein, P. J., Breitel, Rabin, Valente and McNally, JJ.