Opinion
January, 1936.
Present — Hagarty, Carswell, Davis, Johnston and Adel, JJ.
In a paternity proceeding it appeared on the trial that the child, born out of wedlock, was not born in the city of New York but at Brighton, Mass., where she had remained since her birth in the custody of the aunt of the complainant and, therefore, was not, at the time the complaint was made or the trial had, likely to become a charge on the city of New York. These facts were not known to the commissioner of public welfare or the assistant corporation counsel, for the plaintiff had given her place of residence as Brooklyn. Very little evidence was taken; but it appeared that the defendant had admitted that he was the father of this child. When the situation developed the assistant corporation counsel moved to dismiss the proceeding without prejudice. The motion was denied, one justice dissenting. The court then proceeded to determine the case on the merits and granted judgment that the defendant was not the father of the child and discharged him, and dismissed the proceeding. Judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, modified by striking out the part thereof that adjudges the defendant not to be the father of the child and by providing that the proceeding be dismissed without prejudice. As so modified, the judgment is unanimously affirmed.