Rebmann v. Muldoon
| Decision Date | 13 May 1965 |
| Citation | 259 N.Y.S.2d 257,23 A.D.2d 163 |
| Parties | Paternity Petition of Grace Marie REBMANN, Respondent, v. Peter B. MULDOON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael Ruggiero, Jackson Heights, for appellant.
Douglas A. Witschieben, Flushing, of counsel (Dent & Witschieben, Flushing, attorneys), for respondent.
Before BOTEIN, P. J., and RABIN, McNALLY, STEVENS and STEUER, JJ.
This is a filiation proceeding in which defendant has been adjudged the father of complainant's illegitimate child. It has long been recognized that a charge of this character is very simple to assert and equally difficult to negate (Burke v. Burpo, 75 Hun 568). Consequently, an evidentiary rule has been evolved requiring 'entirely satisfactory evidence,' which means evidence sufficient to create a genuine belief that the defendant is the father of the child, a belief which is supported by more than a mere preponderance of the evidence, though not necessarily sufficient to overcome any reasonable doubt (Commissioner of Public Welfare (McNamee) v. Ryan, 238 App.Div. 607, 265 N.Y.S. 286; Matter of Brown v. Labus, 19 A.D.2d 554, 241 N.Y.S.2d 10). To meet this requirement, complainant testified to an act of intercourse on July 7, 1963. But this alone would not establish paternity (People ex rel. Mandelovich v. Abrahams, 96 App.Div. 27, 88 N.Y.S. 924). In fact, where, as here, complainant's relationships with other men are established, the virtual impossibility of direct contradiction of paternity requires very careful scrutiny of the testimony (Drummond v. Dolan, 155 App.Div. 449, 140 N.Y.S. 307).
It serves no purpose to detail the testimony in cases of this kind. Suffice it to say that these facts demonstrate the absence of satisfactory evidence: that complainant cohabited with one Lynch regularly over periods before and after the incident in question; that she also had intercourse with defendant at least six times; and that she frequently entertained other men in her apartment alone. She professed no great fondness at any time for either the men she admits having yielded to, or for those with whom she denies relationship though admitting opportunity. The whole presents a situation where it is doubtful that any one man can be said with any degree of certainty to be the father. Furthermore, her testimony as to the time when, the occasion and the circumstances of her accusation that the defendant was the father of her child is so peculiar that it becomes suspect. As the testimony adduced did not measure up to the required standard, the proceeding should...
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Com'r of Social Services of City of New York, In re
...of the latter kind of promiscuity is severely damaging, if not fatal, to a petitioner's case. See Matter of Rebmann v. Muldoon, 23 A.D.2d 163, 259 N.Y.S.2d 257 (1st Dept. 1965); Matter of Wickham v. Barbera, 279 App.Div. 953, 110 N.Y.S.2d 762 (3rd Dept. 1952), and the discussion of the defe......
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Morris v. Terry K.
...that the one charged is the father of the child (Matter of Edick v. Martin, 34 A.D.2d 1096, 312 N.Y.S.2d 427; Matter of Rebmann v. Muldoon, 23 A.D.2d 163, 259 N.Y.S.2d 257). Since parties are usually discreet in performing acts of intercourse, the proof often necessarily rests on the testim......
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Mannain v. Lay
...(see Matter of Commissioner of Welfare of City of N.Y. v. Fields, 25 A.D.2d 504, 266 N.Y.S.2d 681; Matter of Rebmann v. Muldoon, 23 A.D.2d 163, 164, 259 N.Y.S.2d 257, 258; Phillips v. Tagliavini, 275 App.Div. 1037, 92 N.Y.S.2d CHRIST, SAMUEL RABIN and MUNDER, JJ., concur. BELDOCK, P.J., and......
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Phillips v. Broadwell, 1
...of directly disproving paternity (Matter of Stenzel v. Bennett, 49 A.D.2d 1017, 374 N.Y.S.2d 175; Matter of Rebmann v. Muldoon, 23 A.D.2d 163, 164, 259 N.Y.S.2d 257, 258; see, Matter of Piccola v. Hibbard, 51 A.D.2d 674, 378 N.Y.S.2d 163, affd. 40 N.Y.2d 1035, 391 N.Y.S.2d 855, 360 N.E.2d 3......