
    Florence E. Mayer, Respondent, v. Marian Davis and Others, Respondents, Impleaded with Charles R. Davis, Appellant.
    Second Department,
    November 22, 1907.
    Evidence—bastardy — burden of proof.
    The burden is upon one seeking to establish illegitimacy of another to show beyond, denial, dispute or controversy that the mother’s husband did not have . , access. ■
    Evidence examined and held tobe insufficient to establish lack of access.
    Reargument of an appeal'by the defendant, Charles R. Davis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings oh the 25th day of May, 1906, upon the decision of. the ■ court, rendered .after a trial at the Kings County Special Term, adjudging that the. said defendant is not an heir at law of William H. Davis, .deceased: .
    The opinion written upon the first appeal is reported in 119' ■Appellate Division, 96. ,
    
      Harry E. Lewis, for the appellant.
    
      I. R. Oeland, for the respondent.
   Gaynor, J.:

When this case was first disposed of by us I wrote': “If 280 days be taken as the period of -gestation, there were within it 39 days of possible sexual access of the appellant’s parents before his' father went to the hospital, and if 30.0 days be taken as the period allowed from the latest opportunity of, access' to delivery, there were ,59 ”. In' this-1 made thedarge. error of 47 days. I should. have written “ before his father died ”, instead of before his father went to the hosjfital ” ; and he was in; the hospital. 47 days.. The result is that there was no time of possible access if- the period of 280 days be taken (for there was no access during the 47 days the deceased was in 'the hospital), and only 12 days if the period of 300 ' days be taken. During-these 12 days the deceased was living in the household of the mother of the two tenant's in common other than the appellant, as pointed out in my former opinion. The purport of ,her testimony was that the.wife of the .deceased'never. visited him there. But she says that she was not always at- home,' and" could not tell how often she. went out.' Moreover she was testifying for her children, and to be classed as a biased witness. .The burden was on the respondents to show incontrovertibly—(by “irrefragable proof ”, Caujolle v. Ferrie, 23 N. Y. p. 108), i. e., so clearly and certainly as not to admit of denial, dispute or controversy (see “ Irrefragable ”, Century Dictionary) — that' such access did not take place, and this they did not do. .It would be hazardous to say there was no access. •

- The judgment should be reversed both on the law and the facts..

Hieschbeeg, B. J., Hooker, High and Miller, JJ., concurred.

Judgment reversed on the-law and the facts on reargurnent, and new trial granted, costs' to abide the final award e£ costs. •  