Opinion
January 9, 1967
Appeal by the respondent from an order of filiation of the Family Court of Broome County, and from an order of support. The only testimony in this case bearing on sexual relations comes from the petitioner who is a married woman. She testified that she and her husband had not lived together since March of 1963 and, according to her testimony, they were last alone in privacy in the Summer of 1963. However, he continued to reside within a few blocks of her and as of the apparent time of conception she often saw him on the streets in the city where they resided. There had been no contractual or court order of separation, but she denied any sexual relations with her husband since March of 1963. The petitioner testified that she met the respondent about June 17 of 1964 and that they severed relationships in the latter half of August. Sexual relation commenced some three days after they first met and the child was born on April 13, 1965. The respondent did not take the stand and the only witness on his behalf tried to establish that he had seen the petitioner at her apartment window with someone other than the respondent during the time when she must have conceived. The record does not negate access and petitioner's testimony does not constitute clear and convincing proof of appellant's responsibility. Orders reversed, on the law and the facts, and petition dismissed, without costs. Gibson, P.J., Reynolds, Aulisi and Staley, Jr., JJ., concur with Herlihy, J.