286 A.D. 810 | N.Y. App. Div. | 1955
At the times of the conception and birth giving rise to the order of filiation, complainant was living in the same apartment with her husband. Both complainant and her husband assert that they were not cohabiting at the time of the conception and that they were estranged, although residing in proximity of adjoining rooms under a common roof. The husband signed the birth certificate as the father of the child. Complainant and her husband have since admittedly resumed normal living and marital relations. We cannot regard the evidence of defendant’s alleged paternity of the child sufficiently satisfactory under the circumstances to overcome the strongest presumption of the law, the presumption of legitimacy. Order unanimously reversed and the complaint dismissed. Concur — Peck, P. J., Cohn, Callahan, Breitel and Botein, JJ.