
    In the Matter of Catherine Lane (Grobsmith), Respondent, against Howard Eno, Appellant.
    Fourth Department,
    July 13, 1950.
    
      Paul B. Shanahan for appellant.
    
      Saul Kauffman for respondent.
   Per Curiam.

This filiation proceeding is unusual in that the complainant, a married woman, charges a man, other than her husband, with being the father of her child and this, although she and her husband were living together in apparent harmony. The complainant married her husband on August 9, 1947, and the child was born on January 15, 1948. She had not seen the alleged father of the child since the latter part of May, 1947, nor did she communicate with him thereafter until the bringing of the proceeding in January, 1948. There was opportunity of access by her husband since June 1,1947. The attending physician who examined her about November 18, 1947. concluded she was then about five months pregnant. He could not say ‘ ‘ with any degree of certainty ’ ’ that conception did not take place in June. The testimony of the complainant and that of certain witnesses called by her, is almost incredible and, at best, is highly suspicious and unsatisfactory. The complainant gave her husband’s name for the birth record of the child. The husband either paid or agreed to pay the medical and hospital bills and was willing to support the child. No child should be stigmatized on the evidence shown in this record. It is our opinion that the presumption of legitimacy has not been overcome by evidence of the force, weight and quality requisite. “ The presumption will not fail unless common sense and reason are outraged by a holding that it abides.” (Matter of Findlay, 253 N. Y. 1, 8.) The presumption persists whether conception occurred before or after marriage. (See 10 C. J. S., Bastards, § 3, p. 22; § 6, p. 40; Matter of Lentz, 247 App. Div. 31, and “ Saks ” v. “Saks ”, 189 Misc. 667.) The order should be reversed and the proceeding dismissed. The appeal from the order denying the motion of the appellant for a new trial on the ground of newly discovered evidence should be dismissed as academic.

All concur. Present — Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ.

Order of filiation reversed on the law and facts and proceeding dismissed, without costs of this appeal to either party. Appeal from order denying a motion for a new trial dismissed as academic.  