
    The Commissioner of Public Charities of the City of New York, on Complaint of Julia Tompkins, Respondent, v. Lester Leary, Appellant.
    Second Department,
    April 28, 1911.
    ; Bastards — evidence justifying affiliation.
    Bastardy proceedings. There was evidence that the defendant had sexual intercourse with the complainant many times during the year preceding the bh'th of her child, while there was no evidence that she had intercourse with other persons. Held, that a judgment of affiliation should be affirmed.
    Appeal by the defendant, Lester Leary, from a judgment of the Court of Special Sessions of the city of New York in favor of the plaintiff, rendered on the 13th day of May, 1910, adjudging the defendant the father of the complainant’s child and requiring him to give an undertaking for its support.
    
      
      Walter A. Saxon, fojr the appellant.
    
      Herman Stiefel and Martin Flanagan [Archibald It. Watson with them, on the brief], for the respondent.
   Hirschberg, J.:

It is conceded' that thje defendant had sexual intercourse with the complainant many times during the year preceding the birth of the child, and there is no evidence that she ever had sexual intercourse with! any other person. The last occasion of the defendant’s intercourse was less than six months before the birth of the child, and the defendant in his' brief claims that “the child bom,, being a mature, full grown, nine months’ child, proves conclusively that the defendant is not the father of .said child.” The qase was submitted without argument and the briefs on both sides are devoted to the question whether the child could! have been the result of the last intercourse. Inasmuch, however, as the intercourse admitted was at. such times that the defendant may be the father, assuming the full period of gestation to have elapsed and the child tó be, as claimed by the defendant,.- fully grown and mature,the judgment may yetj be affirmed as within the possibilities of nature’s law. j

The child was bom ¡on February 14, 1910. The defendant testified that his intercourse with the complainant commenced, in January, 1909, and continued -until he went to Maine, which, . his father said, was ón pie 15th day of April, 1909. The intervening period is 305 days, including the date of intercourse and the date of, delivery; and text, writers are agreed that such period- is quite within the range of probability. The sexual intercourse was renewed some time after .his return from Maine, late in July of the same year;

' In' Wharton & Stille's Medical Jurisprudence (Vol. 3, § 52) a condensed table' of actual results in cases; of pregnancy is printed, in reference to which the-authors say: “The total number of cases here reported is 782, of which' 355, or nearly one-half, went beyond the 280th day, up to the 326th day. If we take the number that went beyond - the . 274th day, there will be 547, or more than two-thirds of the whole number of women in these reports whose' pregnancy lasted longer than what has been considered the average duration of this condition.”

In Appleton’s Medical Series (Obstetrics) (2d ed. p. 164) Professor Williams says: “ Usually labor ensues about two hundred and eighty days (ten lunar months) after the beginning of the last menstrual period, so that the approximate duration of pregnancy is two hundred and seventy days, supposing that conception has occurred within the few days immediately following the menstrual flow. This rule, however, is Subject to many exceptions, as apparently Well-developed children may be born as early as the two hundred and fortieth, and as late as the three hundred and twentieth, day after the last menstrual period, and there is no doubt that in exceptional instances the actual duration of pregnancy may equal, if not exceed, three hundred days.”

In the American Text Book of Obstetrics the writers say (p. 179):. “Numerous cases are on record of a prolongation of pregnancy to 336, 332, 324 and 319 days, respectively, after the last menstruation. Granting that conception in these cases did not take place within a few days after the last menstruation, as is the rule, but was postponed to just before the first missed period of that function, we can subtract about 23 days from these periods of gestation, and will then have 313, 309, 301 and 296 days,1 each exceeding the ordinary duration of pregnancy.”

In Mayer v. Davis (119 App. Div. 96) Mr. Justice Gaynor, writing for the unanimous court, said (p. 97): “The usual or average period of human gestation, i. e:, from the beginning of pregnancy to the maturity of the foetus, when delivery should and usually does take place, is 10 lunar months> or 40 weeks, i. e., 280 days. The period from intercourse to delivery may not be identical with that of gestation, but much longer. There is much literature, ancient and modern, in favor of the claim that this latter period may normally last 11 calendar months, especially to save a widow and her. tardy offspring from anything worse than suspicion; but it has scarcely survived the immortal satire of Rabelais (B’k 1, ch. 3). Pregnancy does not always take place and gestation therefore begin at the time of intercourse but several days (even more than a week, respectable medical writers say) later, when the ovum has become ripe to receive the male seed, which retains its vitality in the generative tract meanwhile. By making allowance for this in reckoning back from the birth of a child, and also for the several! days, at least, that delivery may be postponed beyond the usual period of gestation, i. e./after the growth of the foetus has become complete, from 10 to 20 days may be easily added. (Coke on Lit. by H. & B. p. 123 b., n. 1 & 2; 2 Greenl. onEv. sec. 152; Bouv. L. D. vol. 1 [Rawl. Rev.], p. 882; Herold on Legal Med. chap. 40; Lusk on Midwifery, p. 108; Am. Text Book of Obstetrics, p. 176.) Hence 300 days from the time of last possible access is generally established by statute on the continent of Europe as the period to determine legitimacy. (Code Napoleon, art. 312.) In this State a whole year has long been established by statute as the period in proceedings for the support of bastards. (1 R. S. 641; Code Crim. Pro. sec. 838.) ”

An error in the casé cited was corrected on reargument (Mayer v. Davis, 122 App. Div. 393),' but it had no relation to the question now under ¡ consideration.

The judgment should be affirmed.

i

Jenics, P. J., and Woodward, J., concurred; Burr, J., concurred in result in separate memorandum; Carr, J.,concurred in result.

Burr, J.: ;

In view óf the ■ uncontradicted evidence that the child was not a full term child this lengthy medical discussion seems to me to be -unnecessary. I concur in result.

I

Carr, J., concurred.

Judgment of the Court of Special Sessions affirmed. •  