O'Brien v. O'Brien
| Decision Date | 22 October 1957 |
| Citation | 166 N.Y.S.2d 897,4 A.D.2d 867 |
| Parties | Mildred P. O'BRIEN, Plaintiff-Respondent, v. John L. O'BRIEN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
J. H. Mariano, New York City, for plaintiff-respondent.
J. Cutler, New York City, for defendant-appellant.
Before BREITEL, J. P., and BOTEIN, FRANK, VALENTE and McNALLY, JJ.
Order denying a motion for a blood-grouping test under the provisions of section 306-a of the Civil Practice Act, reversed and the motion granted, with remand to Special Term for the taking of appropriate proceedings, including the appointment of a special guardian to protect the interests of the child, without costs. While the pleading allegations, apart from the prayer for relief, do not make the paternity of the child an issue of ultimate fact, the question is quite definitely an evidentiary issue under the pleadings, in the provisional relief sought, and with respect to the ultimate relief requested in the complaint. Moreover, the test may provide virtually conclusive proof as to one of the affirmative, and perhaps key, defenses. Quite in point and persuasive are the holding and reasoning in Anonymous v. Anonymous, 1 A.D.2d 312, 150 N.Y.S.2d 344. All concur except VALENTE and McNALLY, JJ., who dissent and vote to affirm in a separate memorandum as follows: We dissent. Section 306-a, Civil Practice Act, provides for blood grouping tests 'Wherever it shall be relevant to the prosecution or defense of an action.' To invoke the Court's power to grant such tests, the relevancy must appear in the pleadings in the action and the affidavits must present a showing of more than a mere suspicion that there is a basis for questioning the paternity of a child. Defendant has interposed an answer to plaintiff's suit for a separation which pleads as a second affirmative defense a congeries of allegations regarding plaintiff's alleged misconduct including an allegation that plaintiff 'has been guilty of such acts of conduct as to indicate that she has been guilty of adultery.' Predicated upon this general allegation, defendant sought an order under Section 306-a and submitted affidavits in an attempt to show some basis for his suspicions. The main affidavit is that of the husband himself, whose testimony would be barred at a trial by Section 349, Civil Practice Act. Even so, all his affidavit presents are equivocal excerpts from a letter written by plaintiff (no reason was given why the whole letter was not produced) and hearsay averments of alleged admissions made by plaintiff to a clergyman. The incompetence of such hearsay is apparent. However, one of the attorneys for the plaintiff swears that he interviewed the clergyman who denied the alleged admissions were made. Unless we...
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