People on complaint of Mendes v. Pennyfeather

• Decision Date: 25 April 1958
• Citation: 174 N.Y.S.2d 766,11 Misc.2d 546
• Parties: The PEOPLE of the State of New York on the complaint of Josepha MENDES Complainant, v. Ralph PENNYFEATHER, Defendant. * Children's Court, Westchester County
• Court: New York Children's Court

Page 766

174 N.Y.S.2d 766

11 Misc.2d 546

The PEOPLE of the State of New York on the complaint of Josepha MENDES Complainant, v. Ralph PENNYFEATHER, Defendant. ^* Children's Court, Westchester County.

April 25, 1958.

David Friedman, Yonkers, for complainant.

James Bennett, Yonkers, for defendant.

BECKER, Justice.

This is a paternity proceeding under Article VIII of the Domestic Relations Law. A complaint was filed in the Children's Court on the 20th day of September, 1957 alleging that the complainant, Josepha Mendes, gave birth to a child out of wedlock on the 27th day of October, 1952, and that defendant contributed about $200 toward child's support since birth. Miss Mendes testified that she received $10 on July 16, 1953 from the defendant and that on several subsequent dates she received additional moneys totaling $90 up to about Christmas 1953; on several of the occasions subsequent to the birth, when she received money, complainant stated that she participated in sexual relations with the defendant. Nocturnal visits took place at about 5 A.M. at Miss Mendes' apartment and the defendant brought food for breakfast. During the year 1954, Miss Mendes testified she saw the defendant about 30 times and he gave her an aggregate of about $100 and, on a few of those occasions, they had sexual relations. For the year 1955, although the parties had seen each other 15 or 18 times and had sexual relations twice, Miss Mendes received $50 to $60, and the last occasion when she received money was on December 8, 1955.

A motion was made at the close of the complainant's case to dismiss the complaint and one of the grounds for the motion to dismiss was that the proceeding is barred by Section 122, subdivision 2, of the Domestic Relations Law, in that the proceeding was not brought within a period of two years after the birth of the child.

Section 122 of the Domestic Relations Law, paragraph 2, reads as follows:

'Proceedings to establish the paternity of the child may be instituted during the pregnancy of the mother or after the birth of the child, but shall not be brought after the lapse of more than two years from the birth of the child, unless paternity has been acknowledged by the father in writing or by the furnishing of support. * * *' (Italics mine.)

The Statute of Limitations is a specific statute which provides, in substance, that the limitation period may be tolled by an acknowledgment of paternity in writing (Schuerf v. Fowler, 2 A.D.2d 541, 156 N.Y.S.2d 859) or by the furnishing of support.

For the purpose of the motion, we must assume the facts as testified as true and determine whether the moneys received by the complainant constitute furnishings of support as intended by the Legislature in the enactment of this statute of limitations. Support would include, but not be limited to, normally, contributions for food, shelter, clothing, medicine and medical care.

The 'furnishing of support' must be a course of conduct that would be a substitute for a written acknowledgment of paternity; it must be tantamount to a recognition by the putative father of his child. There is a distinction between furnishing support and 'payment of money'. Furnishings of support may include contribution of money; the intention must be that the money is for the support of the infant and for no other purpose. Such furnishing of support should be regular and fairly consistent.

Section 122 of the Domestic Relations Law is a special statute, not a general statute, of limitations. It clearly states that an action 'shall not be brought after a lapse of more than two years'. Therefore, when the complaint is made, it must allege a basis for the tolling of the statute, if it is brought two years after the birth of the child. The burden is upon the complainant not only to allege but to prove such allegation.

In Schuerf v. Fowler, 2 A.D.2d 541, 156 N.Y.S.2d 859, the court held, in interpreting a similar statute in a paternity proceeding under the New York City Criminal Courts Act, that a filiation proceeding may not be brought more than two years after the birth of a child unless the writing which the complainant contended tolled the statute contained a clear acknowledgment about which there is no doubt or equivocation, noting, 2 A.D.2d at page 541, 156 N.Y.S.2d at page 860:

'The question which concerns us on this appeal is whether a letter written by defendant to the complainant on November 2, 1952, constitutes the required acknowledgment in writing.

'There is neither express acknowledgment nor denial of paternity in the letter. It may be a fair inference from the letter as a whole that defendant regarded himself as the father of the child, but that would be no more than inference, and certainly less than an unequivocal admission.

'We construe the law to require a clear acknowledgment about which there is no doubt or equivocation. The does not mean that the acknowledgment would have to be in any precise words, but it should be...