Opinion
July 18, 1975
Appeal from the Erie County Family Court.
Present — Marsh, P.J., Moule, Mahoney, Del Vecchio and Witmer, JJ.
Order unanimously reversed, on the law and facts, with costs, and a new trial granted before another Judge. Memorandum: An order of filiation previously granted herein was reversed by us on July 6, 1973, ( 42 A.D.2d 827) and a new trial granted in a memorandum in which, among other things, we directed (p 828) that petitioner must supply corroborating evidence that the complainant "was with respondent near the time of the conception". Upon the retrial plaintiff produced two witnesses whose testimony, if believed, supplied corroboration that respondent was having dates with complainant during the time of conception, and that she dated no other man during this period. Such evidence established a prima facie case, and it was error for the court to grant respondent's motion for nonsuit and dismissal of the petition before respondent either testified or rested (Matter of "Z" v "AA", 367 N.Y.S.2d 344; Matter of D.G. v C., 39 A.D.2d 643; Erie County Bd. of Soc. Welfare v Truesdale, 15 A.D.2d 862). On this appeal petitioner is entitled to the most favorable inferences which the trier of the facts can draw from the evidence, and in such light petitioner would be entitled to an order of filiation against respondent.