¶1The crime is alleged to have occurred on May 1, 1923. The main facts are well established. Gertrude Scharn, the complaining witness, testified that she became eighteen years of age on May 17, 1923. This evidence must be corroborated because it constitutes one of the material facts essential for a legal conviction. (Penal Law, § 2013; People v. Todoro, 224 N. Y. 129; People v. Harrison, 63 Misc. Rep. 18.)
¶2There was no direct testimony corroborating Gertrude as to her age. She was born in Holland. Her father and mother came with her to this country in 1916 and resided in Rochester. Evidently the parents separated for some reason. The father went to live in Utah. The mother and daughter remained in Rochester, residing on Berkley street, and Gertrude went to school. Testimony of witnesses called by defendant who knew them both *536together with complainant’s evidence established the fact of such residence.
¶3To this home on November 8.1920, came one Carroll, a policeman, taking the school census. This was apparently shortly before the mother’s death, for Gertrude’s testimony is that her mother died during that month. The usual school census blank was made out and Alida Scharn, the mother, signed it and made oath as to the truth of the statements therein contained before the police officer, who was also a commissioner of deeds.
¶4The father was not within the jurisdiction of the court at the time of the trial. That sworn statement of the deceased mother was produced, identified and received in evidence over the objection of the defendant’s counsel. It stated that Gertrude Scharn was born in Holland on May 17, 1905.
¶5I think this evidence competent on the question of complainant’s age. It is, of course, hearsay. So also was the testimony of Gertrude herself on that subject. Declarations in regard to pedigree, though hearsay, are admissible where made before a controversy arose or action brought, and the declarant is a deceased relative. (Young v. Shulenberg, 165 N. Y. 385; Aalholm v. People, 211 id. 416.) It is admitted on the theory that it is the best evidence that can be then obtained. (People v. Koerner, 154 N. Y. 355, 370.) Matters of pedigree include such facts as those concerning birth (Eisenlord v. Clum, 126 N. Y. 552), and the time when such event happened. (Washington v. Bank for Savings, 171 N. Y. 166, 173.) Age may not of itself be an element of pedigree (People v. Sheppard, 44 Hun, 565; Bowen v. Preferred Accident Ins. Co., 68 App. Div. 342, 344), but if the date of birth may be proved, the question .of the person’s age is merely a matter of computation. There is no sound reason why age, when an issue, may not be proved in the same manner as any question of pedigree. I do not regard the rule fixed in this State that declarations of such a genealogical fact as the date of birth are inadmissible. Certainly the weight of modern authority supports the rule favoring admission, when better evidence may not be obtained, whether the issue is strictly one of pedigree or otherwise. (Chamberlayne Mod. Ev. §§ 2923, 2929; Wigm. Ev. [2d ed.] § 1503.)
¶6The number of persons having actual knowledge of the date of birth is always limited, generally at the most to the mother, father, physican, and midwife or nurse. There are times when such witnesses cannot be called to make proof of this essential fact, so the law of necessity accepts records or declarations made by such persons when there was no object to deceive, rather than concede that proof of a patent fact is impossible. (Washington v. *537Bank for Savings, supra, 175; Griffin v. Train, 90 App. Div. 16, 20; 22 C. J. 216, 234.) So a record made in the family Bible may be admitted to prove the date of birth and thereby the age of a person (Penal Law, § 817; People v. Slater, 119 Cal. 620; 33 Cyc. 1473), no matter by whom the entry is made (Union Central Life Ins. Co. v. Pollard, 94 Va. 146; 36 L. R. A. 271; Jones v. Jones, 45 Md. 144, 160; Wigm. Ev. [2d eel] § 1496); and direct testimony may be given by a physician based on a record he made at the time of the birth of a child, or by the father concerning an entry in the family Bible, as showing the age of a prosecutrix in such an action as this. (James v. State, 125 Ark. 269.)
¶7Records of such facts as the age of a person must have recognized reliability and authenticity or they will be excluded. (Penal Law, § 817; People v. Todoro, supra; Connecticut Mutual Life Ins. Co. v. Schwenk, 94 U. S. 593; Bowen v. Preferred Accident Ins. Co., supra; Maher v. Empire Life Ins. Co., 110 App. Div. 723; Buffalo Loan, Trust & S. D. Co. v. K. T. & M. M. A. Assn., 126 N. Y. 450.) The evidence offered in this case may not be so impeached. The record offered was made pursuant to a provision of law. (Education Law, § 650, as amd. by Laws of 1914, chap. 480.) It was intended to secure accuracy. (Id. § 653.) Very likely the records made in its books by the census board would have been competent under the circumstances. (Richards v. Robin, 178 App. Div. 535; Swift & Co. v. Rennard, 119 Ill. App. 173; Armstrong v. Modern Woodmen, 93 Wash. 352.) But we do not need to determine that question. The original affidavit of the mother was produced. That sworn statement would seem to be as reliable as would be her unverified entry in a family Bible. (Russell v. Schuyler, 22 Wend. 277, 280.) While not made admissible by statute as are records of birth and baptism or entries in the family Bible, if the evidence was admissible in a civil case, it was admissible here. (Code Crim. Proc. § 392.) The mother possessed peculiar knowledge on the subject. To her the birth of her daughter must always have been a significant event. When she made the affidavit there was no reason for making a false statement. The mother cannot now give testimony and the law must be content with the best available evidence. If the jury were convinced of its truth and reliability, it constituted the necessary corroboration.
¶8In such cases the appearance of the complaining witness on the stand may be considered by the jury in reaching a conclusion as to her age. (Penal Law, § 817; People v. Ragone, 54 App. Div. 498; People v. Elco, 131 Mich. 519; Commonwealth v. Hollis, 170 Mass. 433; State s. Davis, 237 Mo. 237; Wigm. Ev. §§ 222, 1154, subd. 3.) In this case such evidence might be of slight *538value because the complainant lacked but sixteen days of being eighteen years of age when the act was perpetrated, and she was fourteen days past eighteen when the trial began. It would obviously be difficult by ordinary observation to make such fine discriminations. (People v. Marks, 146 App. Div. 11; People v. Todoro, 160 N. Y. Supp. 352.) But I think we may not hold as a matter of law that the jury could not have taken her appearance into consideration. (People v. Justices of Special Sessions, 10 Hun, 224, 226.)
¶9I vote for affirmance of the judgment of conviction
¶10Crouch, J., concurs.
¶11Judgment of conviction reversed upon questions of law and fact and new trial granted.