Opinion
July 2, 1962
In a proceeding under section 122 Dom. Rel. of the Domestic Relations Law, the defendant appeals from an order of filiation and from an order of support made against him, both dated January 18, 1962 and entered January 24, 1962, made by the Children's Court of Nassau County after a nonjury trial. Orders reversed on the law and the facts, without costs, and petition dismissed. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. In our opinion, the evidence adduced upon the trial does not meet or measure up to the standard required to sustain orders of filiation and support (see Matter of Goff v. MacMillan, 13 A.D.2d 984).
After different trials with different attorneys, two different Trial Justices found that defendant was the father of the petitioner's child. At issue was the identity of the person who had intercourse, during April, 1957, with this 22-year-old petitioner. There was no proof that such person was anyone other than this defendant. Petitioner said she had intercourse with him during that month. Although he admitted having had intercourse with her in May, 1957, he denied the charge as to April. In my opinion, two findings by different triers of the facts against the defendant on this issue should lead to an affirmance of the second finding (see Matter of Goff v. MacMillan, 13 A.D.2d 984).