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Muller v. Maccracken

Decided: February 19, 1943.

WILLIAM H. MULLER, PROSECUTOR,
v.
HUGH MACCRACKEN, JOHN D. LYNN, CHARLES PEARCE, COMMISSIONERS OF THE POLICE PENSION FUND COMMISSION OF THE BOROUGH OF BOGOTA, ETC., ET AL., RESPONDENTS



On certiorari.

For the prosecutor, Landau & Mehler.

For the respondents, Warren Dixon, Jr.

Before Justice Bodine (at chambers under the statute).

Bodine

BODINE, J. The writ brings before the court a resolution of the Police Pension Fund Commission of the Borough of Bogota passed August 6th, 1942, wherein it was resolved that William H. Muller be retired as a member of the police department of the Borough of Bogota on half pay as a sergeant of the police force as of the 8th day of August, 1942. This decision of the board became necessary if the prosecutor was in fact 65 years of age, or older, on the day in question. N.J.S.A. 43:16-1.

The minutes of the board's meeting on August 6th, 1942, returned with the writ, show that all members of the commission were present when the meeting was called to order at 8:00 o'clock. There was also present at this meeting the prosecutor, who was represented by William Mehler, Esq., his attorney. The board proceeded to examine the data presented with reference to Muller's age. The prosecutor did not take the witness stand or has he ever testified respecting his own age. No birth certificate is procurable from the New York City Department of Health, where he was born. There was, however, in the evidence on this return, proof of the birth certificate of a younger brother born November 4th, 1878.

Muller was married July 14th, 1897, for the first time, and the records of the Department of Health of New York City show that at that time his age was stated to be 21. When he married for the second time on August 15th, 1928, the original record of marriage showed that his age was stated to be 50 years and the date of his birthday was stated to be August 8th, 1877. The police records also show that when he joined the force January 1st, 1916, his age was stated to be 38.

To controvert this evidence was an application to the Police Benefit Association, which was a self-serving declaration, made by the prosecutor as to his age. Similarly, there was a baptismal certificate issued when he joined a church. There is no other way that the information contained in applications for marriage licenses can be procured except from those who apply for the license.

Of course, a scrivener might make a mistake, but there

is no reason to suppose that two or more scriveners make identical mistakes. Then, the circumstance that the prosecutor does not take the witness stand to swear that he was not born August 8th, 1877, is a strong circumstance against the asserted claim.

In addition to the baptismal certificate and the application for the Police Benefit, which is not predicated upon age but service in the police force, the deposition of prosecutor's older brother, who lives at Gloversville, New York, was taken. He testified that the prosecutor was born in New York City August 8th, 1879; that he recalls the circumstance because he was about 7 or 8 years old. This brother left home when he was 14, and has had little to do with the family since. His deposition is not convincing and he speaks of the children being about four years apart. He was, however, mistaken because the last child was born November 4th, 1878. So it would seem impossible for the prosecutor, the third child, to have been born August 7th, 1879, and the proofs establish that he had stated twice when he was applying for a marriage license that he was born August 8th, 1877. I say he stated, and I do so advisedly, because there would be no other way in which the clerk in the marriage license bureau could have obtained such information if not from him.

Under our law, he is obliged to apply for his marriage licenses in person. He had an opportunity to read all that was written thereon, and he admitted that the signature to the licenses was in his handwriting. This was the best evidence in the case that his retirement was proper, under the circumstances adduced before the board and not controverted in the depositions, except by the vague testimony of his brother, who would have had little opportunity to know much of anything about the date of birth except as he ...


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