I dissent and vote to affirm. The presumption of legitimacy was rebutted.
The child was born March 12, 1959. Petitioner met the respondent in 1956. At the time and until September, 1958 petitioner and her husband lived in the same apartment. On and after December 20, 1956 petitioner had sexual relations with respondent. During the period of gestation petitioner did not have sexual relations with any other male, including her husband. Petitioner informed respondent of her pregnancy, he approved and acknowledged the child to be Ms. The child was born at the Poughkeepsie General Hospital. Respondent paid the expense. Petitioner and the child thereafter lived in Fishkill, N. Y., about five weeks, during wMch period respondent visited with them weekly on his day off and contributed to their support. Petitioner and the child then moved to Brooklyn, N. Y., where they remained at one address about five weeks and at another address for about five months. At the first Brooklyn address respondent visited daily; at the second address he slept over about three times a week. Thereafter petitioner and the cMld moved into respondent’s quarters in Manhattan where they remained until February, 1962, when he departed for Hong Kong. During the periods aforesaid respondent supported petitioner and the cMld and held the child out as his. At the instance of the respondent, and at Ms expense, petitioner in October, 1960 obtained a divorce from her husband.
The cMld’s birth certificate states his father is petitioner’s husband. Petitioner explained she supplied his name as her husband and not as the father of the child. Petitioner acknowledges she falsely named the child in the divorce proceeding as one of the several children of the marriage. Petitioner’s testi*48mony was corroborated in its essentials by the testimony of witnesses and photographs. Respondent denied sexual relations with or supporting the petitioner or the child, and denied he ever lived with her; he explained the photographs of himself holding the child on the basis of his fondness for children.
The record in my opinion overcame the presumption of legitimacy and established respondent’s paternal liability. (Commissioner of Public Welfare v. Koehler, 284 N. Y. 260; Anonymous v. Anonymous, 1 A D 2d 312.) The judgment and order should be affirmed.
Breitel, J. P., Stevens and Eager, JJ., concur with Steuer, J.; MoNally, J., dissents and votes to affirm, in opinion.
Order, entered on November 1, 1962, reversed, on the law and on the facts, and the proceeding dismissed, without costs.