We are of opinion that the presumption of legitimacy has been overcome by the evidence and admissions in this case. (Matter of Findlay, 253 N. Y. 1.) The sole question remaining for determination is whether or not there is competent proof in this case of non-access of the complainant’s husband. While section 126 of the Domestic Relations Law (as added by Laws of 1925, chap. 255) makes competent the testimony of both the mother and the alleged father in filiation proceedings, we are of opinion that it was not the intent of the Legislature to change the rule and make competent the testimony of a married woman as to non-access of her husband. In this case, however, the question was not raised. The complaining -witness testified, without objection, that she last lived with her husband (meaning last cohabited with him) four years ago. The question was not raised by the objection to the following question as to whether or not any other man besides her husband and the defendant had had intercourse with her and by the exception to the court’s ruling, permitting an answer. There is no exception to any other ruling in the record which raises this question.
In the interests of justice the order of filiation should be affirmed.
Lazansky, P. J., Young, Hagarty and Carswell, JJ., concur; Tompkins, J., dissents, with the following memorandum: