
    The People of the State of New York, Respondent, v. Floyd M. Tubbs, Appellant.
    
    
      
      Affd. 264 N. Y. 641.
    
   Judgment of conviction of the County Court of Dutchess county unanimously affirmed. People v. Farina (134 App. Div. 110) may not be said to have been a determination that a birth coming a few days after the gestation period of 280 days from the date of intercourse could not be ascribed to the act of intercourse complained of. If the ease cited is a holding that this 280 days could not vary, it is not a decision which should be followed. The case was concurred in by but one justice in this court, two other justices concurring in result, and the fifth justice dissenting. The justices concurring in result may well have concluded that a new trial was proper because of the admission of evidence of a later “ rape upon the same female.” The case is at variance with Mayer v. Davis (119 App. Div. 96) and Commissioner of Public Charities v. Leary (144 id. 283). What was said by the writer of the published opinion in the Farina case regarding an alleged admission of guilt not constituting corroboration, must be deemed to have been overruled in People v. Elston (186 App. Div. 224, 229). Likewise, the case last cited is authority against the criticism of the appellant regarding the failure of the complainant to make any disclosure. The rebuttal testimony was competent to refute the defendant’s claim of never having been out in an automobile with the complainant. Present — Lazansky, P. J., Young, Kapper, Carswell and Tompkins, JJ.  