Kingston v. Anhalt ( 1961 )

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).