Opinion
February 4, 1963
In a proceeding pursuant to section 122 Dom. Rel. of the Domestic Relations Law, to establish the defendant's paternity of a child born out of wedlock and to compel defendant to support said child, the complainant appeals from an order and judgment (one paper) of the Children's Court, Rockland County, entered February 28, 1961 upon the opinion and decision of the court after a nonjury trial, declaring that defendant is not the father and dismissing the complaint. Order and judgment affirmed, without costs. Complainant testified that she and her husband were separated during the period of conception. To the contrary, defendant's witnesses testified that during such period, complainant had been seen with her husband nearly every week. The resultant question thus presented as to the credibility of the witnesses was primarily for the trier of the facts to determine ( Matter of Kingston v. Anhalt, 14 A.D.2d 544). On this record, it is our opinion that the trial court was warranted in finding that the complainant had failed to sustain her burden of proof on the issue of access between her and her husband during the period of conception (cf. Matter of Findlay, 253 N.Y. 1, 8; Commissioner of Public Welfare v. Ryan, 238 App. Div. 607, 608). Beldock, P.J., Ughetta, Christ, Hill and Rabin, JJ., concur.