Moy Mee Soo, Respondent, v. Leong Yook Yick, Appellant, 21 A.D.2d 45

Steuer, J. In this filiation proceeding the issue presented was whether the respondent was the father of the child. It appears that the petitioner was a married woman living with her husband at the time of conception and for several months thereafter. Their residence was the back room of a laundry on East 18th Street, Manhattan. About a year and a half after birth of the child petitioner divorced her husband in Nevada. There was conflicting testimony as to respondent’s relations with petitioner, and blood groupings were inconclusive.

The question is whether the evidence produced was sufficient to rebut the presumption of legitimacy. Specifically, the presumption of legitimacy arises from proof of access. At one time access was established conclusively by proof of the barest possibility of its existence (Van Aernam v. Van Aernam, 1 Barb. Ch. 375; 9 Wigmore, Evidence, § 2527). We have abandoned that much of the basis of the presumption (Matter of Findlay, 253 N. Y. 1). But we have not lessened the presumption arising where access is clearly established (see Commissioner of Public Welfare v. Koehler, 284 N. Y. 260, 263).

Although the presumption attains its greatest strength and is given the most rigorous application where the legitimacy of a child is directly in issue (Goodright v. Moss, 2 Cowp. 594, quoted in Commissioner of Public Welfare v. Koehler, supra, p. 267), it nevertheless has general application (Matter of Matthews, 153 N. Y. 443, 447). But it is also true that contrary to the usual public policy of the State (see collation of authorities A. C. v. B. C., 12 Misc 2d 1, 3) enforced in all other proceedings, in a filiation proceeding both the mother and her husband may testify as to nonaccess (Family Ct. Act, § 531).

The net result is that while we do not retain the presumption of access arising from its possibility, we do retain the presumption that a child born of a married woman is the child of her husband where the latter is potent and access is established. In filiation proceedings alone, the spouses may rebut that presumption by testifying to the absence of connection. In the case under review, only the wife so testified.

In view of the uncontradicted fact of her continued residence for a long period in the same limited quarters with her husband, the fact that she testified in her divorce proceedings that the child was her husband’s, and the fact that she named her husband as the father to the authorities when the child was born, it is concluded that the presumption was not rebutted. The judgment and order of filiation should be reversed on the law and the facts and the proceeding dismissed, without costs.