Morris v. White

• Decision Date: 08 March 1968
• Citation: 287 N.Y.S.2d 917,29 A.D.2d 905
• Parties: In the Matter of William MORRIS, Respondent, v. Seymour 'WHITE', * Jr., Appellant. Supreme Court, Appellate Division, Third Department
• Court: New York Supreme Court — Appellate Division

Page 917

287 N.Y.S.2d 917

29 A.D.2d 905

In the Matter of William MORRIS, Respondent, v. Seymour 'WHITE', ^* Jr., Appellant Supreme Court, Appellate Division, Third Department.

March 8, 1968.

Charles P. Caputo, Gloversville, for respondent.

Chandler S. Knight, Amsterdam, for appellant.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and STALEY, JJ.

MEMORANDUM BY THE COURT.

Appeal from an order and judgment, in a filiation proceeding, adjudging the respondent-appellant to be the father of two children and directing support payment.

While it is alleged by the appellant that the petition is legally insufficient, a reasonable reading thereof, in our opinion, sufficiently sets forth the sources of petitioner's knowledge, as well as the grounds of his belief. It seems readily apparent that the petitioner, Commissioner of Public Welfare, received his information from the mother of the children. The peculiar nature of these proceedings does not demand the particularity that might be required in some other form of proceeding.

These types of action are Sui generis and must be governed by their own peculiar circumstances.

The dissenters conclude that the proof does not meet the required standards but, in our opinion, the testimony in the record is sufficient to be 'entirely satisfactory evidence' to sustain the finding of the Judge of the Family Court.

Order and judgment affirmed, with costs.

GIBSON, P.J., and HERLIHY and REYNOLDS, JJ., concur.

AULISI and STALEY, JJ., dissent and vote to reverse and dismiss the petition.

AULISI, Justice (dissenting):

I am unable to agree with the majority. Petitioner, Commissioner of Public Welfare for Fulton County, charged respondent-appellant to be the father of two children born on February 15, 1964 and September 4, 1966. Respondent-appellant was not married to the mother of said children and she was at the time of both births married to another. Respondent-appellant contends that the evidence fails to sustain the judgment of paternity. I am constrained to agree. It has long been recognized that such a charge is easily made and hard to defend (Burke v. Burpo, 75 Hun 568) and the presumption of legitimacy is one of the strongest in the law (Matter of Findlay, 253 N.Y. 1, 170 N.E. 471). The evidence required to establish paternity respondent-appellant's responsibility, the more than preponderant (Matter of Morris v. Canfield, 19 A.D.2d 942, 244 N.Y.S.2d 448; Commissioner of Public Welfare, City of N.Y., on Complaint of Carr v. Kotel, 256 App.Div. 352, 9 N.Y.S.2d 1005).

I find upon the record here that the evidence is less than satisfactory. Suffice it to say that there was a valid marriage at the time of both births, that this proceeding was not commenced until over two and one-half years after the first birth which was designated on the birth certificate as...