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 defendant appeals from the following four orders of the Children's Court, Nassau County, made after trial: (1) a filiation order (described in the notice of appeal as a judgment), dated July 28, 1960 (entered August 23, 1960), which adjudged him to be the father; (2) a temporary support order dated the same day, which prescribed the support and expenses to be paid by him, commencing August 1, 1960; (3) a final support order, dated October 20, 1960 (entered October 27, 1960), which fixed the amount of hospital and medical expenses, and directed that payments be made by defendant commencing March 16, 1959; and (4) an order, dated January 19, 1961 (entered January 30, 1961), amending said final support order so as to change the nature and amount of security to be furnished by defendant in order to stay execution pending appeal. Orders affirmed, without costs. The resolution of the issues involved depends upon the credibility to be accorded to the several witnesses. Under the circumstances here, and in view of the sharp conflict in the testimony of the witnesses, an appellate court would not be justified in substituting its judgment for the judgment of the Trial Judge who has had the advantage of seeing and hearing the witnesses.
Nolan, P.J., Christ and Brennan, JJ., concur; Kleinfeld and Pette, JJ., dissent and vote to reverse the several orders and to dismiss the complaint, with the following memorandum:
In our opinion, the finding that the defendant is the father of the child born to the petitioner is against the weight of the credible evidence. The evidence presents a serious doubt as to his paternity. Such doubt requires that the complaint against him be dismissed ( Matter of Goff v. MacMillan, 13 A.D.2d 984; Commissioner of Public Welfare v. Ryan, 238 App. Div. 607).