Opinion
December 2, 1949.
Proceeding by the People of the State of New York, on the complaint of Frances DeAngelis, complainant, against Albert Guiseppe to establish paternity to child and to make provisions for support. The Children's Court, Smyth, J., held that evidence was sufficiently clear and convincing that defendant was the putative father of the child.
Judgment for complainant.
Affirmed, 276 App.Div. 1102, 96 N.Y.S.2d 848.
Robert E. Dempsey, Peels-skill, for complainant.
Joseph A, Barrett, Ossining, for defendant.
The evidence in this case is clear and convincing that the complainant and the defendant indulged in sexual intercourse frequently during the period of time in which the conception of this child occurred. The defendant claims, however, that he was sterile and therefore could not be the father of the complainant's child. There was a suggestion that he submit to examination by an expert arid it was finally agreed that the Court select the expert and that he should be paid for the examination by the defendant. Mr. Dempsey, the counsel for the complainant, then stated, "I would be perfectly willing that Your Honor select the expert that the defendant will pay and I "will be bound by that testimony, provided we're supplied with a copy of the report.
"Mr. Barrett: That suits me.
"Mr. Dempsey: I am perfectly willing, if that's the only defense that he has.
"Mr. Barrett: Besides her story I'm going; to have his story, of course."
It was then agreed that the examination would be made and the case would be set down for a further hearing. This hearing-took place on October 28, 1949, a brief was submitted by the defendant's counsel, and no testimony was given on the part of defendant, except the report of Dr. George H. Romberg, which was marked in evidence as Ex. #1. It therefore becomes incumbent upon the Court to consider the weight to be attached to this report. It must be borne in mind that Dr. Romberg was not called or sworn as a wilness nor subjected to cross-examination. His report is dated October 14, 1949 and after explaining the nature and subject of the examination, submits the following conclusions: "Above semen ejaculate findings represent a very poor specimen for successful insemination and satisfactory fertility purposes. Concensus of medical opinion would be that this specimen would not be adequate to impregnate."
It is my opinion that this report is not conclusive, although, it is important evidence, to be considered with all the other evidence in. the case in determining the question at issue. In this respect, it is similar to the results in the now familiar blood grouping test. Harding v. Harding, Dom.Rd.Ct, 22 N.Y.S.2d 810, affirmed 261 App.Div. 924, 25 N.Y.S.2d 525.
[2, 3] I think that the effect of the stipulation entered into by complainant's counsel that he would be bound by .that testimony, did not mean that it was to be accepted as conclusive. It simply meant that he would accept it without further examination of the expert for what it was worth, and I think it is important to note the cautious manner in which the expert indicated the unsatisfactory character of the specimen, and that the concensus of medical opinion would be thus and so, but leaving it to be inferred that there might well be a difference of opinion. This report in and of itself is riot sufficient to overcome the effect of the overwhelming evidence in the case which is favorable to the complainant. The complainant has the burden of proving her contentions by clear and uncontradicted evidence. This burden dots not shift. In my opinion she has successfully borne the burden of proof as required by the decisions of the Appellate Courts applicable to filiation proceedings.
Accordingly judgment will be rendered in favor of the complainant. Let the parties appear before me on December 6th at White Plains at 11.00 A.M. o'clock for examination and determination of amounts.