Stanley Kaminsky, Appellant, v. City of New York, Respondent, 20 A.D.2d 692

— Order, entered on January 21, 1963, denying plaintiff’s motion for

summary judgment and granting defendant’s cross motion for

summary judgment and dismissing the complaint, and the judgment entered upon said order on January 28, 1963, are unanimously reversed, on the law, and

summary judgment is directed in favor of plaintiff, without costs. Plaintiff, a patrolman in the Police Department of the City of New York, was suspended without pay pending trial of departmental charges against him. After a hearing he was found guilty by the Police Commissioner and dismissed from the department. The Commissioner’s determination was thereafter annulled by order of this court and plaintiff was restored to duty.

Plaintiff has since been paid his accumulated salary for the period between the date of his suspension and the date of his restoration to duty, less, however, an amount equal to his earnings during that period from other employment. This action is brought to recover the latter amount.

Section 77 of the Civil Service Law, if controlling as to police officers of the City of New York situated as the plaintiff herein, would warrant the deduction of earnings from outside employment. The city, however, does not contend

section 77 is applicable. Accordingly, recovery would appear to be mandated by Fitzsimmons v. City of Brooklyn (102 N. Y. 536), despite the city’s impressive argument that

section 77 expresses a legislative policy warranting reconsideration of Fitzsimmons in the aspect here involved. Concur — Botein, P. J., Breitel, Babin, Eager and Witmer, JJ.