Anonymous v. Anonymous

• Decision Date: 26 October 1959
• Citation: 192 N.Y.S.2d 698,20 Misc.2d 131
• Parties: ANONYMOUS, Complainant, v. ANONYMOUS, Defendant.
• Court: New York Court of Special Sessions

Page 698

192 N.Y.S.2d 698

20 Misc.2d 131

ANONYMOUS, Complainant, v. ANONYMOUS, Defendant.

Court of Special Sessions of City of New York, New York

County, Part IV.

Oct. 26, 1959.

Sherwood & Garner, New York City (Norman S. Fink, New York City, of counsel), for complainant.

Stephen A. Fuschino, New York City, for defendant.

BENJAMIN GASSMAN, Justice.

In this filiation proceeding, defendant moves to dismiss the proceeding for lack of jurisdiction, based on the claim that neither party resides in the State of New York.

The defendant's moving affidavit alleges that since 1949, the defendant resided and now resides in Kingston, Pennsylvania and that the complainant is a resident of the State of Arkansas. Defendant states that from July, 1958, to June, 1959, he served a one-year internship at St. Luke's Hospital in New York City; that in June, 1959, when that internship ended, he was requested by the hospital authorities to stay on until the opening of the medical school in Pennsylvania, and that he terminated his connection with St. Luke's Hospital on September 18, 1959, and went to Philadelphia, where he is now a student of the Graduate School of Medicine. He alleges that in 1958, he voted in Pennsylvania; that up to September 20, 1959, his automobile was registered in that State; that he registered under the Selective Service Act, 50 U.S.C.A. Appendix, § 451 et seq., in Kingston, Pennsylvania, and that when he was commissioned a First Lieutenant in the U. S. Army Reserve, his residence was stated to be Kingston, Pennsylvania. He further alleges that he applied for and received a license to practice dentistry in Pennsylvania, based upon his residence in that State, and that when, in connection with the practice of dentistry, he applied for a narcotics license, his address was given as Kingston, Pennsylvania. He therefore contends that he has always been a resident of Pennsylvania, that he never gave up his Pennsylvania residence and that he never intended to be a resident of New York.

The complainant's affidavit, on the other hand, alleges that she met the defendant in October, 1958, while she was a patient at St. Luke's Hospital, where the defendant was an interne; that she socialized with him in New York City up to May, 1959, during all of which time, the defendant lived, resided and occupied a room in that hospital; that between January 15, 1959, and May 5, 1959, she engaged in a number of acts of sexual intercourse with the defendant and that 'a majority of said acts took place in his room at St. Luke's Hospital, in the City of New York'.

The complainant also states that after she became pregnant, she consulted two physicians in New York City and that on the advice of one of them, she went to New Haven, Connecticut to consult a physician there, who advised her to stay in New Haven 'to wait out her term and to have her child'. She states that she at no time intended to reside in Connecticut and that in her occupation as a student in fashion design, she intended to and intends to live and work in New York City.

In an affidavit submitted by the complainant's father, he states that on September 18, 1959, he accompanied a New York City police officer to St. Luke's Hospital, where the warrant in this proceeding was served upon the defendant and that 'at all times up to and including September 18, 1959, the defendant was and represented to your deponent that he was a resident at St. Luke's Hospital in the City and State of New York'. He also states that his daughter, the complainant, moved to the City of New York on or about September 1, 1958, where she continued to reside until she was advised by her physician to go to New Haven.

Section 64 of the New York City Criminal Courts Act, which governs filiation proceedings in the City of New York provides that 'Proceedings may be instituted (in this court) if the mother or child resides or is found in the city of New York, or if the putative father resides or is found in the city of New York'. A similar provision is contained in Section 122 of the Domestic Relations Law, which governs such proceedings outside of the City of New York.

The jurisdiction conferred on this court by Section 64 of the New York City Criminal Courts Act is limited by the provisions contained in Section 135 of the Domestic Relations Law. That section is the controlling statute and must be read together with Section 64 of the New York City Criminal Courts Act. Duerr v. Wittmann, 5 A.D.2d 326, 331, 171 N.Y.S.2d 444, 449. Section 135 of the Domestic Relations Law provides that it is not a bar to the jurisdiction of the court that 'the complaining mother or child resides in another county or state', and it was held in Feyler v. Mortimer, 299 N.Y. 309, 87 N.E.2d 273, that the words 'another State' refer to another State within the United States and not to a foreign State or country. Accordingly, in that case, where it appeared as a fact that the mother resided in Germany, it was held that the New York courts had no jurisdiction. Similarly, in Angarita v. Court of Special Sessions, 203 Misc. 12, 113 N.Y.S.2d 196 where it appeared that the mother was a resident of Venezuela, it was held that there was a lack of jurisdiction, despite the defendant's admitted residence in New York. However, that is not the situation in this case, for, whether the complainant be deemed a resident of New York, Arkansas or Connecticut, if the defendant resided in New York, this court would have jurisdiction. 'It is sufficient if either the mother or child resides in the United...