Comm'r of Pub. Welfare of New York v. Koehler

• Decision Date: 19 November 1940
• Citation: 30 N.E.2d 587,284 N.Y. 260
• Parties: COMMISSIONER OF PUBLIC WELFARE OF CITY OF NEW YORK, on Complaint of VINCENT v. KOEHLER.
• Court: New York Court of Appeals Court of Appeals

284 N.Y. 260

30 N.E.2d 587

COMMISSIONER OF PUBLIC WELFARE OF CITY OF NEW YORK, on Complaint of VINCENT

v.KOEHLER.

Court of Appeals of New York.

Nov. 19, 1940.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding under Inferior Criminal Courts Act, s 64, by the Commissioner of Public Welfare of the City of New York, on the complaint of Margie Vincent, against Herbert Koehler. From an order of the Appellate Division of the Supreme Court, entered April 15, 1940, 259 App.Div. 835, 20 N.Y.S.2d 172, unanimously affirming an order of filiation of the Court of Special Sessions of the City of New York determining the paternity of a child and providing for its support and maintenance, Herbert Koehler appeals by permission.

Affirmed.

Sydney S. Snyder, of Jamaica, for appellant.

William C. Chanler, Corp. Counsel, of New York City (Stanley Buchsbaum and Paxton Blair, both of New York City, of counsel), for respondent.

LEHMAN, Chief Judge.

In proceedings instituted by the Commissioner of Public Welfare of the City of New York in accordance with the provisions of section 64 of the Inferior Criminal Courts Act, L.1910, ch. 659, as amended, the Court of Special Sessions has made an order adjudging the defendant to be the father of a natural child of one Margie Vincent and directing the defendant to pay the weekly sum of eight dollars for the support, maintenance and education of said child. The mother of the child is a married woman, and, though she was living apart from her husband for more than a year prior to the birth of the child, she was not separated from her husband pursuant to a judgment of a competent court. The Court of Special Sessions has jurisdiction ‘in proceedings to establish paternity and to provide for the support of natural children and of their mothers as set forth herein.’ Inferior Criminal Courts Act, s 60. Upon this appeal the defendant contends that the evidence does not establish that the child born to Margie Vincent is a ‘natural child’ as defined in the Inferior Criminal Courts Act, and on that ground he challenges the jurisdiction of the court to make the order appealed from. He also challenges the competency of the evidence and its sufficiency to prove that he is the father of the child.

The presumption of legitimacy, we have often said, is ‘one of the strongest and most persuasive known to the law.’ Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471, 472. At one time, as the court pointed out in that case, the presumption was conclusive ‘if a husband, not physically incapable, was within the four seas of England during the period of gestation.’ In such case the court would not ‘listen to evidence casting doubt on his paternity.’ Even now, though the ancient rule no longer is applied with the same rigor, ‘if husband and wife are living together in the conjugal relation, legitimacy will be presumed, though the wife has harbored an adulterer’ (253 N.Y. page 8, 170 N.E. page 473). The presumption, however, may be shattered by evidence which establishes that there has been no possibility of access. Legitimacy, we have said there, ‘may even be presumed though the spouses are living apart if there is a fair basis for the belief that at times they may have come together’ (253 N.Y. page 8, 170 N.E. page 473). In Matter of Findlay, supra the court thus said in effect that in accordance with well-established common-law rules a child, born to a married woman, ‘living in conjugal relation with her husband,’ must be presumed conclusively to be a child born in wedlock unless it appears that during the period of gestation the husband was physically handicapped, or that the spouses were living apart in manner which excluded any ‘fair basis for the belief that at times they may have come together.’

The statutory definition of a ‘natural child’ as formulated in the Inferior Criminal Courts Act is ‘a child who is either begotten and born (a) out of lawful matrimony, (b) while the husband of its mother was separate from her for a whole year previous to its birth, (c) during the separation of its mother from her husband pursuant to a judgment of a competent court; or who is begotten at a time when the husband is impotent.’ s 61. The definition is formulated in almost exactly the same language as the statutory definition of a child ‘born out of wedlock’ in section 119 of article VIII of the Domestic Relations Law, Consol.Laws, ch. 14, which is entitled ‘Support and Education of Children Born out of Wedlock, and Proceedings to Establish Paternity.’ Prior to the enactment of that article, similar paternity proceedings had been authorized and regulated by the Code of Criminal Procedure and there the Legislature, in section 838, had used the same language to define a ‘bastard.’ In judicial opinions, judges, according to their individual tastes or whims, had used indiscriminately the terms ‘natural child’ or ‘child born out of wedlock’ or ‘bastard’ to describe a child whose father was not the mother's husband; and difference in the descriptive terms was not intended to carry any juridical consequences. The Legislature in different statutes enacted at different times has also used those terms indiscriminately to describe a child whose father is not the husband of the child's mother and the Legislature has conferred upon the Court of Special Sessions in the City of New York, and upon other courts elsewhere, jurisdiction in proceedings to establish the paternity of such a child for the purpose of compelling the father to pay for the child's support and education.

A ‘natural child’ or a ‘child born out of wedlock’ or a ‘bastard’ as defined by the statutes is in effect a child born ‘out of lawful matrimony’ or born to a married woman under conditions where, as stated in Matter of Findlay, supra, the presumption of legitimacy is not conclusive and has been rebutted. The statutory reference to a child born while the husband of its mother was ‘separate’ from her for a whole year means, it is plain, while husband and wife were living apart under conditions where there is no ‘fair basis for the belief that at times they may have come together.’ There is sufficient proof of that in this case and, when the court so found, it had jurisdiction to make the order appealed from.

In part, however, that proof consists of testimony given by the husband and the wife; and, in the absence of statute, ‘it is well settled that neither husband nor wife are competent to prove non-access during wedlock, whatever may be the form of legal proceedings, or whoever may be the parties thereto.’ Chamberlain v. People, 23 N.Y. 85, 88, 80 Am.Dec. 225; matter of Findlay, 253 N.Y. 1, 170 N.E. 471. The Legislature has provided that in paternity proceedings brought in the city of New York, ‘if the mother is married both she and her husband may testify to non-access.’ Inferior Criminal Courts Act, s 67, subd. 1....