Schulman, J.c.c. (temporarily assigned).
Defendant Rosengard moves to dismiss some nine indictments brought against him as "Acting City Clerk and Assistant Municipal Clerk of the City of Jersey City." The notice of motion was grounded on the assertion that there was a conflict of interest in the dual positions held by the Prosecutor of Hudson County in that the prosecutor was also the city clerk of Jersey City on leave of absence. The motion further charged that the prosecutor on leave was charged with the responsibility of the criminal acts alleged in the indictments in that it was his bond that was surety for the person acting in said office of city clerk.
Attached to the notice of motion was the affidavit of Rosengard setting forth the appointment of one James A. Tumulty, Jr. as city clerk, his leave of absence, the appointment of defendant, together with certified copies of the municipal minutes covering the actions of the municipal body. Also contained in said affidavit were statements by defendant as to the prosecutor's malice towards him and, inferentially, that the indictments in question were prompted by such malice. Annexed to said affidavit were newspaper articles in the several leading newspapers of the State covering Tumulty's leave of absence as city clerk and his several attempts to appoint his successor (not defendant) as the acting city clerk. No answering affidavit was filed by the prosecutor, but an affidavit was filed by an investigator of his office alleging that from his investigation of the municipal minutes defendant Rosengard was never designated as acting city clerk but was actually the Clerk of Jersey City. Both sides filed briefs and the matter was orally argued. In addition, on one occasion, a codefendant, Cruea, testified as to his conversation with the prosecutor prior to his being brought before the grand jury which subsequently indicted him.
After oral argument and consideration of the affidavits and briefs, the following facts were admitted by both sides:
On May 17, 1949 Tumulty was appointed City Clerk of Jersey City for an indefinite term, and was required to enter
into a surety bond for $25,000. In January 1963 he was appointed Prosecutor of Hudson County.
On January 29, 1963 Tumulty wrote to the Mayor and Council of Jersey City asking for a leave of absence from his pay and duties; the letter then continued, "in consonance with the statute I have designated Thomas B. Kenny, Administrative Clerk, to act as 'Acting City Clerk of the City of Jersey City.'"
On January 31, 1963 a special meeting of the Jersey City Council was held. A resolution was passed granting Tumulty a one-year leave of absence. After this resolution was adopted Tumulty (then the city clerk) reaffirmed his designation of Thomas B. Kenny to act as "Acting Clerk."
On January 31, 1963 Tumulty was sworn in as Prosecutor of Hudson County.
On February 5, 1963 the City Council of Jersey City passed a resolution wherein it stated that it had been advised that a vacancy existed in the office of city clerk and it appointed Bernard J. Rosengard city clerk for a term of one year.
On February 4, 1964 a resolution was passed by the council extending Tumulty's leave of absence to January 31, 1965. The council also reappointed Rosengard for another year from 1964 until 1965.
In addition thereto, and in accordance with the law, on May 19, 1961 Tumulty signed as principal on a $25,000 surety bond. This bond was to be in ...