Opinion
Argued October 24, 1962
Decided December 6, 1962
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, PIERSON R. HILDRETH, S.
Gordon M. Lipetz and John R. McNulty for Celeste C. Newins, appellant-respondent.
Wallace F. Davidow for Richard L. Newins, appellant-respondent.
Reginald C. Smith, Raymond A. Smith, Jr., in person, William W. Esseks and Pierre G. Lundberg for respondent-appellant and Raymond A. Smith, Jr., as special guardian, respondent.
No appearance for remaining respondent.
Order affirmed, without costs, in the following memorandum: By reason of the strong legislative policy reflected in subdivision 7 of section 1135 of the Civil Practice Act, we read the broad language of section 40 of the Surrogate's Court Act to vest in the Surrogate the power to decide and declare that a child of a void or voidable marriage is the legitimate child of the decedent whose will or estate is before him. (Cf., e.g., People ex rel. Bennett v. Laman, 277 N.Y. 368, 382-384.) No opinion.
Concur: Chief Judge DESMOND and Judges DYE, FULD, FROESSEL, VAN VOORHIS, BURKE and FOSTER.