Opinion
December 8, 1953.
Present — Cohn, J.P., Breitel, Bastow, Botein and Bergan, JJ.
Order unanimously reversed and a new trial ordered. In our opinion the trial court should have granted an adjournment upon the statement of defense counsel that he had additional medical testimony to prove that defendant was sterile in March, 1951, the alleged time of the conception. The undisputed expert testimony established that the defendant was sterile in February, 1953. The issue of fact was close and such additional testimony would have had material weight in making a decision. The trial court properly excluded the testimony of the defendant as to the absence of physical resemblance between the child and himself. Upon the new trial, however, expert scientific testimony would be admissible to show that in the course of nature it would be impossible or improbable for the putative father to have begotten a child bearing certain racial characteristics displayed by the child whose paternity is in issue (Schatkin on Disputed Paternity Proceedings, p. 159; Commissioners v. Whistelo, 3 Wheel. Cr. Cas. 194).