(dissenting). The evidence was sufficient to warrant the unanimous determination of the triers of the facts.
The presumption of legitimacy is no longer to be applied in its pristine vigor, but access is to be determined “ in the light of experience and reason.” (Matter of Findlay, 253 N. Y. 1, 8.) The soundness of the rule against testimony by a married woman in filiation proceedings as to non-access with her husband has been well questioned by good authority. (4 Wigmore, Evidence [2d ed.], §§ 2063/2064.) Moreover, the statute here in question does not work an exception to the common-law rule with respect to a single court but rather with respect to a general class of litigation — filiation proceedings — jurisdiction over which in the city of New York is vested exclusively in Special Sessions. I am of opinion that it may not be said that this is an unreasonable exception, in view of the congested and large population in the city, where the majority of such proceedings within the State are had.
I accordingly dissent from the reversal of the order of filiation and vote to affirm.
Order reversed and the proceeding dismissed.