Opinion
October 26, 1961
Appeal from the Erie Children's Court.
Present — Williams, P.J., Bastow, McClusky and Henry, JJ.
Order unanimously reversed, without costs of this appeal to either party, and a new trial granted. Memorandum: In a filiation proceeding, the proof must be entirely satisfactory. ( People v. Borner, 280 App. Div. 141; Commissioner v. Ryan, 238 App. Div. 607. ) In this case, the bill of particulars claimed a normal period of gestation and on this theory the case was tried. Assuming that the period of gestation was 280 days, by the complaining witness' own admission, the respondent was absent from the community when the conception is claimed to have occurred. In addition, the testimony of the complaining witness tended to establish that there was a normal menstrual period after the alleged date of impregnation. Courts will take judicial notice of the normal things of life. Anything out of the ordinary must be proved. ( Hunter v. New York, Ontario Western R.R. Co., 116 N.Y. 615.) In the absence of expert medical testimony, the proof in this case cannot be said to have been entirely satisfactory.