Gaulkin, J.c.c. (temporarily assigned).
Plaintiff moves for summary judgment. His affidavit sets forth that he, a police officer of the City of Newark, was suspended on March 21, 1955, the following being the written notice that was then served upon him:
"Take notice that in accordance with the provisions of Title 11, Revised Statutes, and pending a hearing, you are hereby suspended as of 12:30 P.M. 21st March, 1955, for a period * * * Pending Trial * * * for the following reasons:
Violation of Rule 2 of Discipline -- Soliciting or accepting a bribe.
In this, that the said Patrolman Chester A. Rozmierski * * * did * * * on Sunday, February 27, 1955, between 10:00 A.M. and 11:00 A.M., willfully solicit and accept, from Willie M. Vining * * * the sum of thirteen dollars ($13.00), as payment in lieu of the issuance of a summons for an alleged traffic violation * * * Patrolman Chester A. Rozmierski thereby being guilty of violation of Rule 2 of Discipline, aforesaid."
Both sides agree that "thereafter pursuant to additional notice * * * the hearing on said charges was commenced on April 18, 1955." Defendant's affidavit says that on that day "after the swearing in of one witness, said hearing was adjourned without date, said adjournment being at the request of the plaintiff and his attorney, Samuel A. Larner, because of a pending action in the County Court."
Plaintiff says, without denial, that thereafter "pursuant to a notice from my superiors," the hearing was resumed February 26, 1956 before Police Director Joseph B. Sugrue, "the official duly authorized to hear and determine the charges." On February 28, 1956 Director Sugrue found plaintiff "not guilty of the charges preferred against him," and plaintiff was ordered to return to duty, which he did.
Pursuant to R.S. 40:46-34 plaintiff then demanded his salary for the period of his suspension, March 21, 1955 to March 1, 1956. Payment having been refused, he instituted this action.
In its answer the defendant admits all of plaintiff's complaint except the following paragraph, which it denies:
"4. The aforesaid suspension from March 21, 1955 to March 1, 1956, was illegal and said suspension was judicially declared illegal by the finding of the Police Director as aforesaid."
The only other defenses raised by defendant are that plaintiff rendered no service to defendant during the period of his suspension (which is admitted), and that "at the request of said plaintiff the hearing was adjourned pending the outcome of a complaint then pending against the plaintiff in the Essex County Court."
The affidavits and the briefs say no more about the "complaint then pending * * * in the Essex County Court" than does the defendant's answer. Believing myself entitled to take judicial notice of the records of the Essex County Court, I found that plaintiff was indicted for extortion on October 10, 1955, pleaded not guilty October 24, and on November 22, 1955 was tried in the Essex County Court on the indictment and acquitted. Defendant makes no ...