(dissenting). I dissent and vote to reverse the orders and to dismiss the proceeding and the application for counsel fees.
There is no question that the petitioner was married to her first husband at the time the child in question was conceived and born; and that she remained married to him until the child was approximately 4% years of age, when she apparently divorced her first husband and married the respondent. Access was available until she left her first husband sometime in June of 1951, but both testified to the practice of birth control. The petitioner testified that the child was conceived about a week or two weeks subsequent (July 4, 1951) and it is clearly established that the child was born April 11,1952. It appears that the petitioner separated from the appellant in 1957 and divorced him in 1959. She did not bring the present proceeding until August 28, 1964 when the child was 12 years of age, at which time she was married to her third husband. It is my opinion that she is barred from bringing this proceeding by reason of section 517 of the Family Court Act, which provides that such a proceeding may not be brought after the lapse of more than two years from the birth of the child unless paternity has been acknowledged by the father in writing.
The petitioner’s contention is that this is a support proceeding and not a paternity proceeding. With this contention I disagree. The court below apparently found that under section 24 of the Domestic Delations Law the child became legitimatized upon the marriage of the petitioner and the appellant in 1956, but in order to so find he had first to conclude that the child was illegitimate; and, in order to come to this conclusion, he had to find from the evidence that the first husband was not the child’s father. Thus, this can only be considered as a paternity or filiation proceeding. I might note that in considering time limitations we look to the substance of the action rather than to the form (cf. Blessington v. McCrory Stores Corp., 305 N. Y. 140).
*354I cannot agree with the majority that the letter wherein, in part, the appellant said that he loves the petitioner and “ our baby ” satisfies the requirement of section 517. In my opinion, this was not an unequivocal statement, inasmuch as such words in the letter do not constitute a clear acknowledgement of paternity about which there is no doubt or equivocation (cf. Schuerf v. Fowler, 2 A D 2d 541).
I am further inclined to the view that the petitioner’s case was not established by “ entirely satisfactory” evidence (Commissioner of Public Welfare v. Ryan, 238 App. Div. 607). It is to be noted that the Family Court ordered the first husband to support the child; and that he did so until 1958.
Christ, Acting P. J., and Benjamin, J., concur with Hill, J.; Brennan, J., dissents in separate opinion, in which Hopkins, J., concurs.Orders affirmed, with one bill of costs.