
    The People of the State of New York on the Complaint of Christina Nicholaides, Respondent, v. Milton Theodos, Appellant.
   On appeal by the defendant from an order in a filiation proceeding, entered in the office of the clerk of the Children’s Court of Westchester county, which found defendant to be the father of a male child born to the complainant March 2, 1937, and required him to contribute to its support, order unanimously affirmed, without costs. Intercourse before and within the period of gestation is conceded, and the only defense interposed is that during that period complainant was married to a man other than defendant. The presumption of legitimacy is relied on to supply the essential fact that the child in question is the fruit of the marriage. The uncontroverted evidence is to the effect that complainant’s husband has been confined in hospitals for the tubercular for some six years and has been so confined in New Mexico for the past four years, during which times complainant has resided without interruption in Mount Vernon, N. Y. The testimony rebutted the presumption of legitimacy (Matter of Findlay, 253 N. Y. 1, 8), which must meet the test of reason applied to the simple facts of life. Present —■ Hagarty, Carswell, Johnston, Adel and Taylor, JJ.  