Commissioner of Welfare ex rel. Treadwell v. Rose , 283 A.D. 781 ( 1954 )

Order of filiation reversed and a new trial ordered. This proceeding was commenced in February, 1953. The complainant charged that the appellant was the father of her child born on January 10,1948. She testified that on March 21,1950, she married one James Treadwell. Upon cross-examination she fixed September, 1949, as the date of her first meeting with Treadwell. Subsequently, she changed the date to September, 1948. The People, however, called as a witness the former wife of complainant’s brother. She testified that in 1947 she and complainant lived in the same apartment and during the period from April, 1947, until the child was born in January, 1948, Treadwell and complainant occupied the same room in the apartment. This was not denied by complainant except for her testimony that she did not meet Treadwell until September, 1948. We conclude that the complainant has not sustained the burden of proof required, which goes beyond a mere preponderance of the evidence to the point of entire satisfaction (Commissioner [.Barretia] v. Unger, 264 App. Div. 894). Upon the new trial it would seem wise in' the search for the true facts to obtain the testimony, if available, of complainant’s present husband. Present — Peck, P. J., Dore, Breitel, Bastow and Bergan, JJ.