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MATTER ELLEN ORANGE *FN* (12/27/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


December 27, 1968

IN THE MATTER OF ELLEN ORANGE*FN*

Appeal from an order of filiation of the Family Court, Otsego County, entered April 23, 1968 upon a decision after trial.

Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.

Author: Reynolds

Concededly the child involved was conceived during the time respondent and appellant were still legally married. Thus there is a presumption, where access is established, that the child is the legitimate offspring of the marriage (see Domestic Relations Law, ยง 175; Commissioner of Public Welfare v. Koehler, 284 N. Y. 260, 263). Such presumption is not conclusive, but can only be overcome by strong proof (e.g., Moy Mee Soo v. Leong Yook Yick, 21 A.D.2d 45; see People v. Lewis, 25 A.D.2d 567). At most there is presented here a disputed factual issue as to access and the record adequately supports the trial court's determination that such in fact existed. Moreover there were introduced letters concededly written by appellant while he was at the Elmira Reformatory in which he expressly acknowledged and admitted parenthood of the child here involved. Appellant stresses that at the trial of her proceeding for annulment respondent denied any "cohabitation" with appellant during the period of conception. But beyond noting that such a prior statement would not necessarily preclude a finding here that such was in fact the case, it must be observed that to a layman there is reasonable ground to construe "cohabitation" as involving a prolonged living together rather than a single isolated act of intercourse in the back seat of an automobile. There is advanced absolutely no proof that even attempts to rebut the presumption beyond the claim of non-access (cf. People v. Lewis, supra ; Moy Mee Soo v. Leong Yook Yick, supra ; Anonymous v. Anonymous, 1 A.D.2d 312). Accordingly, we find no basis to disturb the decision of the trial court and it must therefore be affirmed. Order affirmed, with costs.

Disposition

Order affirmed, with costs.


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