Arlene W. v. Robert D.

Moule, J. (dissenting).

Petitioner complains of a number of rulings of the court made during respondent’s cross-examination. She contends that respondent was a hostile witness, which obviously he was. However, the court refused to allow petitioner’s attorney to ask bim leading questions and ruled that she was ‘ stuck with his answers ’ ’.

A party who calls an opposing party as a witness generally may, because he is hostile, cross-examine him (Becker v. Koch, 104 N. Y. 394, 401; Matter of Cinque, 25 A D 2d 752; Richardson, Evidence [9th ed.], § 515). However, respondent was not *461required to testify when called by the petitioner (Family Ct. Act, § 531). The claimed error in the record was the result of petitioner’s efforts to cross-examine respondent when he was called as a witness in petitioner’s case, and the court’s refusal to permit such examination. The resultant confusion justifies a new trial.

Petitioner testified that she first had intercourse with respondent on November 22, 1967; she was definite about the date, stating it was respondent’s birthday. However, her doctor subsequently testified that petitioner’s last menstrual period before the birth of the child began November 21, 1967. This certainly raises a substantial question as to petitioner’s credibility. Further, petitioner’s roommate, who claimed that she saw petitioner and respondent in compromising circumstances, was very careful to avoid mentioning the exact date. Respondent testified he never had intercourse with petitioner, and also that petitioner entertained other boys in her apartment.

While in an action tried by a court without a jury this court may grant such final judgment as it finds the trial court, upon the evidence, should have granted (Hacker v. City of New York, 26 A D 2d 400; Bernardine v. City of New York, 294 N. Y. 361; 7 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5522.04), it would be better practice, in the instant case, to grant a new trial (Power v. Falk, 15 A D 2d 216, 218; Victor Catering Co. v. Nasca, 8 A D 2d 5, 9; 7 Weinstein-Korn-Miller, supra, par. 5522.05).

Marsh, J. P., Cardamone and Henry, JJ., concur with Witmer, J.; Moule, J., dissents in an opinion.

Order reversed on the law and facts, with costs, paternity declared and matter remitted to Erie County Family Court for further proceedings in accordance with this determination.