Anonymous v. Anonymous

• Decision Date: 26 March 1956
• Citation: 1 A.D.2d 312,150 N.Y.S.2d 344
• Parties: ANONYMOUS, plaintiff-respondent, v. ANONYMOUS, appellant; Anonymous, respondent.
• Court: New York Supreme Court — Appellate Division

Page 344

150 N.Y.S.2d 344

1 A.D.2d 312

ANONYMOUS, plaintiff-respondent, v. ANONYMOUS, appellant; Anonymous, respondent.

Supreme Court, Appellate Division, Second Department.

March 26, 1956.

Sidney Salant, New York City, for appellant.

Herbert Rabinowitz, New York City, for respondents.

Louis M. Brass, Brooklyn, special guardian in person. BELDOCK, Justice.

This is an action for separation by a wife based upon abandonment, nonsupport and cruel and inhuman treatment. The supplemental complaint alleged that the parties were married in 1946 and have three daughters; one six and a half years of age, and twins five years of age. The claimed abandonment occurred on December 23, 1954. The answer admits paternity of the older child but denies the paternity of the twin daughters, and denies the allegations of abandonment, nonsupport, and cruel and inhuman treatment. A counterclaim for divorce, interposed by defendant, alleges that plaintiff and a named corespondent had been living in adulterous intercourse continuously since October 1, 1948; that the twins, whose paternity defendant denies, were born in October, 1949; that five years have not elapsed since the discovery of the adultery, and that defendant has not cohabited with plaintiff since such discovery. The corespondent was served with the answer and has served a pleading denying all the allegations of defendant's answer and counterclaim.

After joinder of issue, defendant moved for an order directing a blood grouping test of himself, the plaintiff, the twins, and the corespondent, for the purpose of excluding his paternity of the twins.

Section 306-a of the Civil Practice Act provides: 'Wherever it shall be relevant to the prosecution or defense of an action * * * the court, by order, shall direct any party to the action * * * and the child of any such party and the person involved in the controversy to submit to one or more blood grouping tests * * *. Whenever such test is ordered and made, the results thereof shall be receivable in evidence only where definite exclusion is established.'

The motion was denied at Special Term, resulting in the order appealed from.

Before discussing the merits of the application, it is well to outline the rather unusual events which precipitated this litigation. On December 22, 1954, the husband discovered eight separate writings (letters, cards and a telegram) allegedly written by the corespondent to plaintiff. These communications contained significant references to specific incidents of intimate relations between plaintiff and the writer. The first writing is dated February 1, 1948 (as stated, defendant charges the adulterous intercourse commenced October 1, 1948), and the last writing is dated December 23, 1952. Defendant discovered these writings two years later, on December 22, 1954. He asserts that when he confronted plaintiff with them she admitted they were written by the named corespondent, and also admitted that the corespondent is the father of the twins. Defendant left plaintiff the following day. After the action had been instituted, a 'notice to admit' the receipt of this correspondence was served on plaintiff. She denied receiving them (except for a postcard, which is not incriminating). A similar 'notice to admit' was served on the named corespondent. He refused to admit or deny writing or sending the correspondence and invoked the United States and New York State Constitutions, upon the ground that the 'demands called for might tend to incriminate' him.

The relevancy of the blood grouping tests is disputed by the parties. Plaintiff's attorney and the corespondent's attorney in opposing affidavits urge that defendant and plaintiff have continuously lived together during the period of gestation of the twins and for more than five years thereafter; that defendant accepted the children as his own, has never questioned his paternity, and that this constitutes laches, which should bar defendant from obtaining the relief sought. It is also urged that no envelopes were produced and that there is no proof that plaintiff was the addressee of the communications or that they are in the handwriting of the named corespondent.

Plaintiff in an opposing affidavit states that the exhibits are a manufactured fabrication, and the charges based thereon were made in retaliation for the separation action she instituted.

A special guardian appointed for the children opposed the application on the ground that the authenticity of the letters is a great 'mystery', and although the letters 'suggest lewdness' they are insufficient to form a basis upon which the granting of the motion would be justified.

Plaintiff, the corespondent, and the special guardian invoked the presumption of legitimacy as a ground for the denial of the motion.

We need not be concerned with the question of the court's power in a proper case to order blood grouping tests in actions where the legitimacy of a child born during wedlock is in issue. That question has been settled by Kwartler v. Kwartler, 291 N.Y. 689, 52 N.E.2d 588, wherein it was held that the Supreme Court has such power under section 306-a of the Civil Practice Act in an action for divorce.

The questions here presented are: (1) whether the blood tests are relevant to the prosecution or defense of the action ; (2) whether the fact that the parties had been living together continuously since the birth of the twins, and for a period of five years thereafter, precludes defendant from asserting the claim of illegitimacy because of laches, and (3) whether the fact that defendant and plaintiff lived together during the period of gestation created a conclusive presumption of legitimacy.

The complaint in the case at bar alleges that the twins are issue of the marriage. A judgment containing a provision for their support is part of the relief sought by plaintiff in her action for separation. Defendant denies paternity. Irrespective of who will prevail, a provision for the support of the twins will be an integral part of the judgment. Defendant's obligation to support the twins depends upon his paternity. Obviously, the blood grouping test cannot be irrelevant to the prosecution or defense of this action within the meaning of the above section. Moreover, the application for the blood tests may be justified in view of the contents of the correspondence, which the special guardian describes as expressing 'words of endearment and even suggest[ing] lewdness' and which, in our opinion, indicate the existence of meretricious relationship between plaintiff and the corespondent over a long period of time, including the period of gestation.

There is no validity to the claim of laches. Defendant alleges that he discovered the revealing correspondence on December 22, 1954, and left his home the following day.

It is urged that the presumption of legitimacy resulting from the fact that plaintiff and defendant lived together during the period of gestation requires a denial of the motion.

Reason and logic, as well as a recognition of the modern advances in science, compel a determination that the presumption of legitimacy is not conclusive but rebuttable. The probative value of the results of skillfully conducted blood grouping tests has been widely accepted. The tests of course will be relevant only if they show noncompatibility as between the blood of defendant, the plaintiff, and the twins. If so, such evidence should be deemed conclusive as to nonpaternity.

In Beach v. Beach, 72 App.D.C. 318, 114 F.2d 479, 131 A.L.R. 804, a wife brought an action for maintenance on the ground she was pregnant by defendant, her husband, who denied paternity and counterclaimed for divorce on the ground of adultery. The husband sought a blood grouping test pursuant to subdivision (a) of rule 35 of the Rules...