108 N.J. Eq. 339 | N.J. Ct. of Ch. | 1931
The complainant invokes the aid of this court on the ground of its inherent jurisdiction over frauds, to decree cancellation of an alleged fraudulent certificate of birth ascribing to him the paternity of the child therein mentioned. The physician who attended at the child's birth caused a certificate to be filed with the local registrar of vital statistics pursuant to statutory requirement therefor. Said certificate was thereafter certified to the state registrar of vital statistics. The name of the child as stated in said certificate was Alice Gerardi. The name of the father of the child was stated therein as Albert Aimone. The name of the mother of the *340
child was stated therein as Lena Gerardi, who, at the time of the birth of said child, was a married woman, her husband's name being Rocco Passafaro. She was married to her said husband May 14th, 1918; they separated in 1920 and never lived together or were in the company of each other thereafter. Two children were born of the marriage, Lucia Passafaro, born October 3d 1918, and Josephine Passafaro, born January 20th, 1920. The child described in the certificate aforesaid was born March 13th, 1923. For some undisclosed reason said physician filed with the local registrar of vital statistics under date of July 23d 1923, a certificate requesting that the name of the child be changed in the certificate previously filed by him from Alice Gerardi to Alice Aimone. Such certificate was apparently filed under the authority of section 13 of chapter 109 of the laws of 1909. The physician who attended at the birth of said child, and who signed and filed both of the aforesaid certificates, was not produced as a witness herein although it was testified he was alive and practicing in Bergen county. For convenience the defendant who is impleaded herein as Lena Gerardi will be hereinafter described as the defendant. The complainant denies and the defendant avers complainant is the father of the child named in the aforesaid certificate. The proofs herein manifest that the complainant and said defendant were in the company of each other in such manner, under such circumstances, and for such periods of time, as to enable them to indulge in sexual intercourse, if they were disposed so to do. The defendant testified that complainant indulged in sexual intercourse with her, and that the child named in the aforesaid certificates was begotten as a result of such intercourse. The complainant's lack of frankness in testifying with respect thereto militates against him. The child was in court throughout the hearing of the case. I observed that there was a strong facial resemblance of the child and the complainant, commented thereon at the hearing, and called complainant's attention thereto. I consider the testimony of the defendant, as to the paternity of said child, coupled with the child's strong facial resemblance to the complainant, *341
strong indicia of the truthfulness of defendant's testimony that the complainant is the father of the child. In Gaunt v. State,
I will advise a decree dismissing the bill of complaint. *347