Opinion
March 11, 1940.
Present — Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ.
Order of filiation of the Court of Special Sessions of the City of New York, Borough of Brooklyn [County of Kings], modified by reducing the amount directed to be paid to six dollars weekly, and as thus modified unanimously affirmed. (a) The record indicates that the amount fixed by the court was based in part on the fact that the defendant's wife had earnings. It should have been based wholly on the earnings of the defendant. (b) No constitutional right of the defendant was invaded by receiving in evidence the testimony of the complainant and her husband. Both were competent to testify to non-access. (Dom. Rel. Law, § 126.) The latter enactment, though subsequent to the institution of this proceeding, was applicable to this trial. That enactment did not precipitate any constitutional question because this proceeding is not a criminal action; it is a civil action and rules of evidence in such civil actions may be changed by the Legislature and made applicable to existing causes of action. ( Commissioner of Public Welfare, City of New York [ Complaint of Middlekamp] v. Nelson, 232 App. Div. 763; People v. Daley, 124 id. 562, 564; People ex rel. Smith v. McFarline, 50 id. 95; Mayham v. Allen, 50 Hun, 343; 2 Cooley's Constitutional Limitations [8th ed.], 766.)