Mitchell v. Murphy
283 A.D. 803
N.Y. App. Div.
1954
Check Treatment

In an action brought to rescind a pension contract between plaintiff, a retired police officer of the City of New York, and defendants, members of the board of trustees of the police pension fund of the City of New York, plaintiff appeals from an order granting defendants’ motion for summary judgment. Order unanimously affirmed, with $10 costs and disbursements. Appellant alleged in his complaint that his application for retirement, which was made on the basis of twenty years of service, and the acceptance thereof by respondents, who awarded him a pension based on such service, occurred under a mutual mistake of fact as to appellant’s physical condition. In our opinion the documentary proof submitted by respondents on their motion for summary judgment established prima facie the truth of their denials that any mistake of fact, mutual or unilateral, existed as to the nature and contents of the applica*804tion for retirement or the acceptance thereof, and appellant failed to show any facts sufficient to raise an issue with respect to the verity or conclusiveness of such proof. Present — Nolan, P. J., Adel, Wenzel, Schmidt and Beldoek, JJ.