Hale v. Burns

This is an action against the defendant, Burns, individually and as captain of the Second Police Precinct of the police department of the city of New York, for injunctive relief, decreeing that the defendant be restrained from a continuing trespass on the plaintiff’s property. A motion was made at Special Term for a temporary injunction against the defendant, in the tenor of the demand for relief in the complaint, and from an order granting such an injunction pendente lite the defendant appeals.

The plaintiff is duly licensed to conduct a saloon at No. 193 Washington street, in the borough of Manhattan, city of New York, and had been conducting that business for some time prior to the commencement by the defendant of the unlawful acts of which he complains. The saloon proper occupies the ground floor, and the plaintiff has two rooms on the second floor, which are used in his restaurant business, where, as appears from the affidavits, he has been in the habit of serving meals to both men and women. One of the rooms upstairs is used as a clothesroom for butchers occupied at the Washington Market, opposite the premises of the plaintiff. These butchers are customers of the plaintiff, and rent from him the use of this room. Access to the second floor is gained by means of a stairway at the side of the saloon, and upon the second floor there is a third room, occupied by the Sunny Brook Pleasure Club, which seems to be an incorporated social club. It is undisputed that the plaintiff is not a member of the club, has nothing to do with it, and is not interested, as owner or proprietor or in1 any other way, with the premises it occupies. Suspecting that gambling was being practiced or would be indulged in by visitors at the club-rooms, the defendant, as captain of police of the precinct, on or about the 1st day of February, 1904, stationed two police officers, in citizens’ clothing, on the plaintiff’s premises. One took his post in the plaintiff’s saloon, and the other upstairs, sometimes within and sometimes without the plaintiff’s eating room. The)'- assigned as the reason of their being there that the defendant had directed them to post themselves there for the purpose of preventing gambling on the premises, and, though many times requested by the plaintiff to quit the premises unless they had business to transact, refused to go. Officers were kept there daily from noon until about midnight. The plaintiff and his attorney protested to the defendant against the continuance of the presence of the officers upon the premises, and were met with the explanation that the defendant would not desist until he had driven Matthew and Thomas Stripp out of his precinct. It appears that the Stripp brothers and one Cavanagh were members of the club, and the defendant suspected them of running a gambling room on the second floor of the building, where the plaintiff maintained his saloon. They frequently patronized the plaintiff’s restaurant and his bar. The defendant further said to the plaintiff and his attorney that it would do them no good to protest, and that, as long as the plaintiff did business

The plaintiff’s action is, in nature, to restrain a continuing trespass. That equity will lend its aid in such behalf cannot be doubted. Mohawk & Hudson R. R. Co. v. Archer, 6 Paige, 83. And this branch of equity jurisprudence has been held properly applicable to restrain public officers from performing acts in the discharge of their duties which seemed to come within the nature of trespass tending to the irreparable injury of the aggrieved party. People v. Canal Board, 55 N. Y. 390 ; People ex rel. Negus v. Dwyer, 90 N. Y. 402 ; Tribune Ass’n v. Sun Printing & Pub. Ass’n, 7 Hun, 175 .

The appellant’s contention that this action should not lie, for the reason that the plaintiff will have an adequate remedy at law when his business is finally wiped out, should not prevail. The mere fact of a continuing trespass, if without legal authority and contrary to the wishes of the plaintiff, is quite sufficient to authorize the maintenance of the action. But further than that, it is difficult to comprehend how the plaintiff can ultimately show the extent of his damages. It is clear that the injury to him will be irreparable, and we are convinced that he has no adequate remedy at law. He may sue for the trespass, it is true, but meanwhile his business is being ruined, if his statements are to be believed; and the court below has evidently put greater faith in his version of the few disputed questions presented by the affidavits.

There is nothing in the papers more than the suggestion of a suspicion that the law has ever been violated in the room occupied by the Sunny Brook Pleasure Club, and what statements there are in the affidavits are not worthy the name of proof. Above all that, it is not suggested or intimated that the plaintiff has ever in any way, either on his premises or in the room occupied by the club, committed a crime, or attempted to do so. His worst fault is he has allowed two or three characters who seem to be suspected by the police to enter his place of business. It is true that section 37 of chapter 112, p. 78, of the Laws of 1896, declares that places where liquors are sold by reason of liquor tax certificates are public places, and gives to police officers the right to inspect them; and it is true that section 315 of the charter of the city of New York (Laws 1901, p. 136, c. 466) makes it the duty of police officers to “observe and inspect all places of public amusement, all'places of business having excise or other licenses to carry on any

The case of Weiss v. Herlihy, 23 App. Div. 608 , 49 N.. Y. Supp. 81 , is in many respects similar to the one in hand. There the defendant had stationed police officers in a restaurant ostensibly to prevent gambling therein, and the First Department, by a divided court, refused to reverse an order denying plaintiff’s motion for an injunction pendente lite. It seems from the prevailing opinion in that case that it had been established with some reasonable degree of certainty that the premises occupied by the plaintiff were those where common gambling had been indulged in, and the majority of the court seemed to be of the opinion that, because the plaintiff’s place had been a common gambling house, the defendant, as captain of the police, was within his rights and privileges, and in the performance of his duties, in attempting to prevent further violations of law at that place. The record here discloses no evidence of that character, however, and no suggestion appears that the room occupied by the club was, prior to the advent of Cavanagh and the Stripp brothers, ever used for any purpose of an immoral nature. Practically the only excuse the defendant offers for his conduct was that he suspected these men of being common gamblers; knew they were members of this club; that they had recently abandoned old ■ premises where they were supposed to have conducted a gambling place; and the inference- was that they had transferred it to this clubroom. The case also differs in this: that the plaintiff there appeared to be somewhat of a notorious character himself, and had been convict

The view taken leads to the conclusion that the preliminary injunction granted in this case was properly continued during the pendency of the action. A majority of my associates, however, are of the opinion that the order under review goes too far in its recitals, which declare, among other things, that the defendant, a police captain, has acted maliciously and oppressively toward the plaintiff. It seems to them that the court ought not, in awarding a provisional remedy, to declare, as a matter of fact, that an officer has been guilty of a crime; and oppression is a misdemeanor, under section 556 of the Penal Code. The order to be entered upon our decision, therefore, while affirming the order appealed from, so far as it continues the injunction, will modify the same by striking out the recitals declaring that it satisfactorily appears to the court that the defendant has acted maliciously and oppressively. It is enough to warrant the injunction and its continuance that it appears that the acts sought to be restrained constitute a continuing trespass.

Order modified by striking out all allegations charging the defendant with oppression, and, as modified, affirmed, without costs. All concur.