
    
      “ Anonymous ”, Plaintiff, v. “ Anonymous ”, Defendant.
    Court of Special Sessions of the City of New York,
    June 24, 1958.
    
      
      Bernard Gore for plaintiff.
    
      Joseph G. Blum for defendant.
   Benjamin Gassman, J.

This case was originally tried before Justices Heller, Bossbagh and Schwartz and at the conclusion of the trial, an order was made by a majority of the court (Bossbagh, J., dissenting) on October 10, 1957, dismissing the complaint and denying an order of filiation. By notice of motion, dated February 3, 1958, the complainant, Margaret Nolan”, moved for a new trial on the ground of newly discovered evidence. During the pendency of the motion, City Magistrate Hilda Schwartz, who sat by appointment at this trial, resigned, following her appointment as City Treasurer of the City of New York. By an order made by Chief Justice Cooper, dated June 13, 1958, I was designated one of the three Associate Justices to rule on the complainant’s motion. t

Justice Heller rendered a decision denying the motion, holding that such a motion could not be made by a complain ant,| but only by a defendant. Justice Bossbach rendered a decision granting the motion, holding that such motion could be made^ by an unsuccessful complainant.

I examined the testimony taken at the trial, consisting o|-225 pages. Had I been one of the Justices before whom this0 case was tried, I would have concurred in the decision madjg by the majority of the trial court. After reading the moving opposing and reply affidavits, I see no reason for changing my decision. ?

There are two questions presented on this motion: (l).Ms there any authority in law for a motion for a new trial byR ajg unsuccessful complainant in a filiation proceeding, based^gn newly discovered evidence? (2) Assuming that there is sijcA authority, is the proffered evidence of such a character as warrant a new trial? xoY

In New York City, a filiation proceeding is a civil proceeding quasi-criminal in nature. ‘ ‘ It is a unique proceeding in sogm respects resembling a civil action and in others a criminal action ” (Schatkin, Disputed Paternity Proceedings [3d ed.], p. 68). In Duerr v. Wittmann (5 A D 2d 326, 329, 330) the Appellate Division, First Department, said: ‘ while some aspects of a filiation proceeding may be criminal in character, it is not a prosecution for the punishment of a crime. * * * The allegations need not be established beyond a reasonable doubt (Commissioner of Public Welfare v. Ryan, 238 App. Div. 607); corroboration of the mother’s' testimony is not required (Commissioner of Public Charities v. Vassie, 167 App. Div. 74); a defense of double jeopardy is unavailable (Hodson v. Hoff, 266 App. Div. 228, affd. 291 N. Y. 518). * * * In short, the filiation proceeding is not readily categorized as either a civil or a criminal action. It is a creature sui generis, to which special rules apply. * * * These special proceedings are governed by their own rules, separate and distinct from those generally applicable to civil and criminal actions.”

A filiation proceeding is not a criminal prosecution. It is a proceeding brought to enforce a statutory duty imposed upon the father of a natural child to whom the father, at common law, owed no duty (Commissioner of Public Welfare v. Koehler, 284 N. Y. 260). Such a proceeding may also be brought against both father and mother and liability may be apportioned between the two as the court, in its discretion, may deem proper (N. Y. City Crim. Cts. Act, § 73). To that extent, the mother may be a defendant.

While there is no express provision in the New York City Criminal Courts Act for a motion for a new trial by an unsuccessful complainant, I do not believe that our court is so impotent as to declare itself unable to grant a new trial on a complainant’s motion, if the court is convinced that the interests of justice would be served by such action. The fact that subdivision 7 of section 465 of the Code of Criminal Procedure gives the right to move for a new trial to a defendant only, does not change the situation, for it may well be held that under section 78 of the New York City Criminal Courts Act, the right of a complainant to so move has not been foreclosed. In section 78, it is provided that all provisions of the Penal Law or of the Code of Criminal Procedure or other statutes inconsistent with or repugnant to the provisions of article V of the New York City Criminal Courts Act are repealed by section 78 of that act. Unlike the provision in strictly criminal cases, which permits an appeal to be taken only by a defendant from a judgment of conviction and not by the People from a judgment of acquittal, section 76 of the New York City Criminal Courts Act allows an- appeal — as a matter of right — to a complainant as well as to a defendant in a filiation proceeding. We must, therefore, conclude that the intent behind article V of that act was to permit motions for new trials by a complainant as well as by a defendant, and that any other holding would be repugnant to the spirit of the provisions of article V.

I therefore concur in so much of Justice Bossbach’s opinion as holds that in proper cases a motion for a new trial, on the ground of newly discovered evidence, may be made by an unsuccessful complainant. However, 1 do not believe that any useful purpose will be served by compelling the personal appearance of the “newly discovered witnesses” under subdivision 8 of section 31 of the act, as suggested by my learned colleague. I fully agree with that portion of Justice Helleb’s opinion which states that the “ newly discovered evidence ” would not change the result, because it falls far short of the standard of law justifying an order of filiation.

To warrant the granting of a new trial on the ground of newly discovered evidence, the evidence must be: (1) material; (2) not merely cumulative; (3) it must have been discovered since the trial; (4) the failure to produce it at the trial was not due to want of diligence; and (5) it must be of such a nature that in all probability it would produce a different result if a new trial is had. All of the foregoing five requirements must be present, else the motion must be denied.

As Mr. Schatkin points out in his work on Disputed Paternity Proceedings ([3d ed.], pp. 148-149): “The court will not adjudge the defendant to be the father of the child unless the proof measures up to the standard required by law (Comm. v. Rosato. 256 App. Div. 978). This standard is not that in civil actions, where a mere preponderance of the credible evidence is sufficient. Nor is the standard as rigorous as that in criminal actions, where proof of guilt beyond a reasonable doubt is demanded. The evidence in an affiliation case must be entirely satisfactory. An order of filiation will not be granted unless the complainant sustains the burden of proof ‘ which goes beyond a mere preponderance of the evidence to the point of entire satisfaction ’ (Comm. v. Unger, 264 App. Div. 894). * * * The evidence of defendant’s paternity must be clear and convincing. * * * If the evidence adduced in" behalf of the complainant fails to measure up to that standard, the complaint will be dismissed.”

I examined the entire record and reached the conclusion that even had the proffered evidence — now claimed to be “ newly discovered” — been produced at the trial, the result would not have been different. The evidence failed to establish defendant’s paternity by clear and convincing proof to the point of “entire satisfaction.” The moving affidavits are contradicted by the answering affidavits. Where the “ newly discovered evidence ” is contradicted by opposing affidavits, and with the other evidence presents questions of fact which, in the judgment of the court, would not change the result, and the court is satisfied that the judgment is just, the motion for a new trial should be denied (People v. Stielow, 161 N. Y. S. 599). Evidence which merely contradicts or impeaches former evidence, even though the impeachment is successful, is not sufficient to warrant a new trial (People v. Burke, 141 Misc. 778, affd. 236 App. Div. 723). Such evidence is not newly discovered evidence (People v. Shepard, 142 N. Y. S. 2d 882).

The motion is accordingly denied.

Louis B. Heller, J.

(concurring). This is a motion for a new trial by the complainant, in a filiation case, on the ground of newly discovered evidence, pursuant to subdivision 8 of section 31 of the New York City Criminal Courts Act. The majority of the court (Heller and Schwartz, JJ.), after trial, denied a filiation order, Mr. Justice Rossbach voting to grant the order. Subsequently, the complainant appealed to the Appellate Division, First Department, and that appeal is now pending. Complainant now moves for a new trial.

At this point I deem it appropriate to set forth some of the evidence at the trial in order to show why the majority of the court was not satisfied that the defendant was the father of the child.

The complainant testified she was 34 years of age; was married at the age of 16 years; and has not worked since 1941. She admits that a number of men have ‘ ‘ kept ’ ’ her, but denies being a prostitute. Under cross-examination she identified four men who have assisted her financially or “kept” her during the past several years. She admits that even during the pregnancy allegedly caused by the defendant, another man contributed toward her support.

The majority of the court, having in mind the well-settled rule in paternity cases that the evidence required to justify the granting of a filiation order, viz., that the evidence of paternity must be clear, convincing and satisfactory, did not see its way clear to adjudge this defendant the father of the child. The promiscuity of the complainant, as indicated in the preceding paragraph, is one of the factors which, the majority of the court considered, rendered the complainant’s case something less tba.n ‘ ‘ clear, convincing and satisfactory. ’ ’

The complainant testified that she had sexual relations with the defendant from about 1948 until March 3-4, 1956, and she became pregnant on March 3 or 4, 1956, as a result of sexual relations "with the defendant at the Savoy Plaza Hotel in New York City. The defendant admits he had sexual relations with her from 1949 until his marriage in 1953, and not thereafter. He denies specifically any sexual intercourse with her on March 3 or 4, 1956.

The complainant was a mental patient in the Mt. Sinai Hospital from November 3, 1955, until March 21, 1956, on which date she was transferred to the Manhattan State Hospital as a mental patient and was finally discharged on May 12, 1956.

When it is considered that the complainant alleged that she became pregnant on March 3-4, 1956, obviously the complainant was in the hospital during the entire period of possible conception of the child. Her stay at the hospital was, however, broken by two week-end passes, namely, March 3 and 4, 1956, and March 10 and 11, 1956. Complainant alleged the occurrence of intercourse with the defendant on March 3-4, 1956.

As for the week-end pass of March 10-11, 1956, the complainant testified that she spent that week end with a friend of hers, Mrs. Eonald Harry, at Mrs. Harry’s apartment, no men being present.

Under cross-examination, Mrs. Harry, with whom complainant spent such week-end, admitted that she had been arrested on charges of prostitution in both Detroit and Florida.

It is not necessary to recite any further details of the evidence, except insofar as they may be relevant to this motion.

This motion may be said to be based on two circumstances, namely (1) a conversation with the defendant in April, 1956, in which the defendant is alleged to have made a certain statement indicating responsibility for her pregnant condition and (2) a record of the New York X-ray Laboratory, which complainant claims showed that her urine specimen was taken to said X-ray laboratory and the result forwarded to the defendant’s physician.

As to the conversation in April, 1956, at Manhattan State Hospital, an affidavit in support of the motion is submitted by S. Catherine Turner, an attendant at Manhattan State Hospital, which states that on April 22, 1956, this affiant overheard the defendant say to the complainant, “It is impossible for you to have a baby. You must have an abortion. I will make the arrangements. ”

The affiant, S. Catherine Turner, did not testify at the trial, and it is complainant’s contention that her production in court on a new trial, to testify to said admission by the defendant, will change the result of the trial.

The complainant also contends that the defendant requested Mrs. Harry to take a specimen of complainant’s urine to a laboratory to be tested. Complainant asserts that at the time of trial neither she nor Mrs. Harry could identify the laboratory to which the specimen had been brought. Subsequent to the trial Mrs. Harry recalled the name of the laboratory and now produces a card and certificate of the New York X-ray Laboratory on which appears the name of one Dr. Schlesinger, alleged to be the defendant’s physician.

It is apparently the complainant’s contention that if a new trial is granted the records of the New York X-ray Laboratory will be produced to show that a specimen of complainant’s urine was brought to that laboratory at the defendant’s suggestion, and that the results were to be forwarded to the defendant’s physician, Dr. Schlesinger.

Despite this alleged new matter, it is my opinion that the introduction of such new matter at a new trial would not change the result, because complainant’s testimony still falls short of the standard required by law.

A critical legal question is presented by this motion, namely, whether the complainant in a filiation case has the right to make a motion for a new trial.

Subdivision 8 of section 31 of the New York City Criminal Courts Act provides as follows: Section 31. Jurisdiction of Court of Special Sessions. The court of special sessions shall have jurisdiction as follows: * * * 8. The court of special sessions shall have power to grant a new trial where it is made to appear, by affidavit, that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict or judgment; if such evidence has been discovered since the trial, is not cumulative, and the failure to produce it on the trial was not owing to want of diligence. The court in such cases, can, however, compel the personal appearance of the affiants before it for the purpose of their personal examination and cross-examination, under oath, upon the contents of the affidavits which they subscribe.” (Emphasis mine.)

It is only too obvious that this statute, upon which the complainant relies in making this motion for a new trial, authorizes such new trial for the defendant exclusively. I cannot read into that statute any authorization for a complainant to make a motion for a new trial.

The same reasoning applies with reference to section 465 of the Code of Criminal Procedure, which similarly authorizes a motion for a new trial by the defendant exclusively.

Section 76 of the New York City Criminal Courts Act, it is true, authorizes an appeal by the complainant in a filiation case, but is silent on the subject of a motion for a new trial by the complainant.

In Matter of Clausi (296 N. Y. 354) Judge Fuld, writing for a unanimous Court of Appeals, stated, in part, as follows pp. 355-356): “ Although we have held that a paternity suit is criminal in form (Commissioner of Public Welfare v. Simon, 270 N. Y. 188, 191; Hodson v. Hoff, supra), it must be observed that such statements were made, such rulings announced, in cases brought in the Court of Special Sessions of the City of New York under the Inferior Criminal Courts Act — now known as the New York City Criminal Courts Act (L. 1910, ch. 659, as amd.) — and were regulated by the Code of Criminal Procedure. Civil in essence, the proceeding assumes a ‘ criminal ’ form from its surroundings — from the fact that it is tried in a court of criminal jurisdiction.”

In Grant v. Konis (203 Misc. 1089) the complainant made a motion for the issuance of a commission to take testimony under sections 636 and 637 of the Code of Criminal Procedure. In that case, in denying such application, this court noted as follows (pp. 1092-1093): Sections 636 and 637 of the Code of Criminal Procedure limit the right to examine a witness residing outside the jurisdiction on a commission to take testimony, to a defendant. There is no authority in the Code of Criminal Procedure for the examination of a nonresident witness by the issuance of a commission by the complainant, and this court cannot read into those statutes something that is not there.”

This court, therefore, in the Konis case (supra) declined to read something into the statute that was not already there. By the same token, I will not read into the statute something that is not there; namely, a motion for a new trial by the complainant.

In the Clausi case (supra) the Court of Appeals held that in a paternity case pending in the Court of Special Sessions, New York City, this court must be guided by the provisions of the Code of Criminal Procedure. Nowhere in the Code of Criminal Procedure or in the New York City Criminal Courts Act is there any authorization whatsoever for the right of a complainant to move for a new trial.

It is my opinion that on all the evidence adduced at the trial the complainant’s proof does not measure up to the required standard of law and, accordingly, the majority of the court denied a filiation order. I now hold that this court is without authorization or jurisdiction to grant a new trial to the complainant in a filiation case.

Accordingly, I vote to deny this motion.

J. Howard Rossbach, J.

(dissenting). The unsuccessful complainant in a paternity action in this court now asks for a new trial on the ground of newly discovered evidence. At the trial an order of paternity was denied by a majority of the court. The undersigned dissented.

On this motion we must determine both whether the new evidence would warrant a new trial, and, if the evidence be sufficient, whether this court has the power to grant this motion where the complainant, rather than the defendant, is the moving party.

At the trial complainant was shown to be far from a model of virtue. Her life was a sordid story of having been “ kept ” successively by a number of men and was punctuated by a series of several abortions. Defendant, on the other hand, was shown to be a reputable and substantial businessman. Under these circumstances only the most extraordinary circumstances would justify the issuance of an order of paternity. They were present here.

The child was born on November 18, 1956. Complainant • claimed that conception took place on the week end of March 3-4, 1956, when she spent the week end with defendant at a certain room in a certain hotel in New York City. The undisputed fact, backed up by hospital records, is that, aside from this week end and the following one of March 10-11, complainant was a patient in the mental ward of a hospital for months before and months after any possible date of conception. Unless we accept the extremely unlikely suggestion that intercourse took place in a women’s ward of a hospital, we are driven to the conclusion that complainant became pregnant on one of the two March week ends.

Complainant stated that she spent the March 10-11 week end with a Mrs. Harry who corroborated her and swore that no men were present in her apartment on that occasion. This witness was a weak testimonial reed for complainant to lean upon, since on cross-examination her own lurid past was exposed. The main thrust of defendant’s attack, however, was that conception had taken place before March 3, since physical examinations of complainant on March 26 revealed her uterus to be enlarged one and one-half times normal size. Medical testimony was introduced to show that this indicated conception somewhat before March 3.

Defendant admitted a prior illicit relationship with complainant. He admitted visiting complainant in the hospital twice in April, 1956. He denied spending the week end of March 3 with the complainant but conceded that he had spent that week end in the hotel described by complainant and had registered there under an assumed name. This he stated, was done for “ Business Reasons ” and to avoid complications with his wife from whom he was then living apart. He claimed that his only visitor was his brother.

He denied knowledge of claimant’s pregnancy in April. He further denied requesting Mrs. Harry to obtain a specimen of claimant’s urine and to submit it to a laboratory for a test of pregnancy. At the trial Mrs. Harry testified as to the above request but could not remember the name of the laboratory.

The trial court had to balance these statements and facts against the thorough attack upon the reputations of claimant and her key witness. A majority of the court voted to deny an order of filiation.

The new evidence now advanced as the basis for a new trial is the proffered testimony of a hospital nurse who allegedly overheard defendant in one of his April visits urging complainant to have an abortion. Also complainant now states she can prove that the laboratory urinalysis was ordered by defendant’s doctor. This additional proof might well have changed the result of the trial. The excuse for its nonproduction at the original trial appears sufficient. I believe that complainant’s motion should be granted as far as the merits are concerned.

Now we come to the question of whether this court has the power to grant a new trial on motion of complainant. No authority squarely in point is cited by either party and the case appears to be one of first impression.

It is urged that only the defendant — never the complainant — can move for a new trial. In support of this position there is cited subdivision 8 of section 31 of the New York City Criminal Courts Act which provides: “ The court of special sessions shall have power to grant a new trial where it is made to appear, by affidavit, that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict or judgment; if such evidence _ has been discovered since the trial, is not cumulative, and the failure tc produce it on the trial was not owing to want of diligence.”

The limitation on the power of the court to grant a new trial to those cases where the defendant offers to produce new evidence makes good sense in a criminal case. If the defendant is acquitted on the original trial he cannot be retried, as any retrial would constitute double jeopardy. Thus after an acquittal on trial the prosecution can neither move for a new trial nor seek to appeal. Either course would be futile since the defendant is immune from retrial.

A paternity case stands on a somewhat different footing than a criminal case. Outside New York City where such cases are tried in Children’s Court the proceeding is civil in nature. Motions for a new trial are governed by civil practice (People v. Bowers, 9 Misc 2d 873). Unquestionably each party has an equal right to make the motion.

In New York City the proceeding becomes partially criminal in nature. Fundamentally this is accomplished by a process akin to that of osmosis in physics. Paternity cases are tried by a court of criminal jurisdiction and thus somehow they themselves come infused with criminality (Matter of Clausi, 296 N. Y. 354). This infusion is augmented by certain sections of the New York City Criminal Courts Act which specifically deal with paternity proceedings, and by sections of the Code of Criminal Procedure.

Notwithstanding the above aura of criminality there is a realization that the complainant in a paternity suit stands in a different position from the prosecution in a criminal case. Thus the complainant if unsuccessful is given the right of appeal (N. Y. City Crim. Cts. Act, § 76). The claim of double jeopardy is unavailable to the defendant in a paternity case (Hodson v. Hoff, 266 App. Div. 228, affd. 291 N. Y. 518). If double jeopardy will not prevent a retrial in a paternity case, why bar a complainant for asking for a retrial? Her rights are equal if she seeks a new trial by way of appeal. Why should they be different if she seeks it by motion? It is hard to believe that the Legislature intended such an anomaly. What is sauce for the gander should be sauce for the goose.

There has been growing recognition that not all the limitations of criminal trials are applicable to paternity suits. Procedural rules peculiar to criminal cases have been held not to apply to paternity cases (Duerr v. Wittmann 5 A D 2d 326 [1st Dept., March 11, 1958], and cases therein cited).

We hold that the limitation of retrial only on application of the defendant is not applicable to paternity eases for the reasons above stated. We further hold that this court, although a court of limited jurisdiction, has certain inherent powers which include the granting of a motion such as this (Matter of Hogan v. New York Supreme Ct., 295 N. Y. 92).

Since any retrial would probably be a lengthy one, complainant should first produce her affiants for examination and cross-examination as provided in subdivision 8 of section 31 of the New York City Criminal Courts Act. The final decision as to the granting of a new trial should abide the outcome of that hearing.

Heller, J., concurs with Gtassman, J., in separate opinion; Rossbach, J., dissents in opinion.

Motion denied. 
      
       Fictitious names are substituted for the true names of parties herein) fit
     