Shirley S. v. Robert K. D. , 331 N.Y.S.2d 915 ( 1972 )

Order unanimously reversed on the law and facts and new trial granted, with costs to abide the event. Memorandum: In this paternity proceeding the court dismissed the petition before petitioner (the first witness) had completed her testimony, and over objection of her counsel who advised the court that he had other witnesses to present. Upon the unusual facts then before the court it appeared unlikely that petitioner could meet her burden of proof without excluding the possibility of paternity by the motel occupant whom she visited, for respondent could be determined to be the father only on evidence which was entirely satisfactory (Matter of Edick v. Martin, 34 A D 2d 1096). Nevertheless, petitioner was entitled to present her other witnesses in an attempt to prove all necessary elements of her case, and the court committed error in granting the premature motion for dismissal of the petition (CPLR 4401; Budner v. Giunta, 16 A D 2d 780; Matter of Driller v. Power, 14 A D 2d 596; Mordoh v. City of New York, 270 App. Div. 896; Levy v. Goldman, 252 App. Div. 781; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4401.05). (Appeal from order of Erie County Family Court dismissing petition in paternity proceeding.) Present—Marsh, J. P., Witmer, Gabrielli, Cardamone and Henry, JJ.