Commr. of Welfare of City of N.Y. v. Wiener

Full title: COMMISSIONER OF WELFARE OF THE CITY OF NEW YORK, Respondent, v. MOE…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 6, 1962

15 A.D.2d 744 (N.Y. App. Div. 1962)

Opinion

February 6, 1962

Order entered on or about December 1, 1960, in this filiation proceeding, reversed on the law and the facts and the complaint dismissed, without costs, on the ground that the proof was unsatisfactory to establish the fatherhood of appellant.

Concur — Breitel, J.P., Rabin and Eager, JJ.; Valente and McNally, JJ., dissent and vote to affirm in the following memorandum:

We vote for affirmance. The test laid down for proceedings of this character is that the evidence must be "entirely satisfactory". We are of the opinion that the evidence in this record meets that test. Essentially, we are concerned with an issue of credibility. The unusual circumstances under which the alleged loan was made to the complainant by the defendant more than warranted the triers of the fact to believe the complainant and disbelieve the defendant. Settle order on notice.