Hawthorne v. De Both

Order unanimously reversed, on the law and facts, with costs, and a new trial granted before another Judge. Memorandum: An order of filiation previously granted herein was reversed by us on July 6, 1973, (42 AD2d 827) and a new trial granted in a memorandum in which, among other things, we directed (p 828) that petitioner must supply corroborating evidence that the complainant "was with respondent near the time of the conception”. Upon the retrial plaintiff produced two witnesses whose testimony, if believed, supplied corroboration that respondent was having dates with complainant during the time of conception, and that she dated no other man during this period. Such evidence established a prima facie case, and it was error for the court to grant respondent’s motion for nonsuit and dismissal of the petition before respondent either testified or rested (Matter of "Z” v "AA ”, 367 NYS2d 344; Matter ofD. G. v C, 39 AD2d 643; Erie County Bd. ofSoc. Welfare v Truesdale, 15 AD2d 862). On this appeal petitioner is entitled to the most favorable inferences which the trier of the facts can draw from the evidence, and in such light petitioner would be entitled to an order of filiation against respondent. (Appeal from order of Erie County Family Court in paternity proceeding.) Present—Marsh, P. J., Moule, Mahoney, Del Vecchio and Witmer, JJ.