Hyperlawhypertext legal database Health Department v. Police Department 41 N.Y. Super. Ct. 323

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Health Department v. Police Department

41 N.Y. Super. Ct. 323 9 Jones & S. 323 Court N.Y. Super. Ct. Decision date 1876-08-01 English

Contents

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THE HEALTH DEPARTMENT OF THE CITY OF NEW YORK, Plaintiff and Respondent, v. THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, WILLIAM F. SMITH, and others, Defendants and Appellants.[1]

Headnote

I. SEAL ESTATE.
1. Forcibly taking possession under claim oe right.
(a) One who permits another to enter upon Ms premises and. occupy them free of rent, such permission being only for a temporary purpose, cannot regain possession by force.
1. Police Department.
(<e) So greater right in this respect than an individual.
3. Injunction.
(a) Such forcible taking possession will be restrained.
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Before Curtis and Van Vorst, JJ.
Decided, August 1, 1876.
H. INJUNCTION
1. Notice of application, for.
Irregularity in not giving when required, how waived. (a) By proceeding with hearing at Special Term without presenting the objection.
IH. SPECIAL TERM VIEWS APPROVED.
HEAD NOTE TO SPECIAL TERM DECISION
I. Number 300 Mulberry Street, and 301 Mott Street ; building thereon known as central office of the Police department.
1. Ownership op : the City of New York has the title.
H. POLICE DEPARTMENT AND HEALTH DEPARTMENT.
1. Occupation by, of rooms in said building.
a HEALTH DEPARTMENT.
1. Upon its organization in 1873 it acquired rights in the rooms then, and since continued to be, occupied by it, of which it could not be dispossessed by any one not having a superior title, (a) Police department has not such superior title. '
b DISPOSSESSION BY FOROB.
1. Neither department can dispossess the other from the apartments occupied by it by force, and without warrant of law.
III. INJUNCTION
1. Principles on which granted.
Wherever the court has grounds for believing that its interference is necessary to prevent abuse, injustice, oppression, OR THE VIOLATION OP A TRUST.
Speir, J.
On April 21st, 1876, the health department was in occupation of certain rooms in the building covering premises No. 300 Mulberry street and 301 Mott street; and the police department was in occupation of the rest of the building.
On that day a squad of police, under the order of the board of police commissioners, entered by force certain of the rooms so occupied by the health depart
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ment, and the police commissioners threatened to enter by force into the other rooms occupied by the health department, and by force to expel that department, its officers, and employees from the rooms so already entered and those so to be entered. Thereupon the health department commenced an action against the police department and the police commissioners, and obtained an order requiring them to show cause “why they, each of them, their officers, agents, employees and servants, should not be enjoined and restrained from entering into, taking possession of, holding, using, occupying, or in any manner controlling the use and disposition of the rooms and offices now and heretofore used, held and occupied by the plantiff herein, by the corps of vaccinators, the bureaux, officers, agents and employees of the said plaintiff, the health department of the City of New York, at premises and in the building known as No. 301 Mott street, in said city of New York, and from in anywise obstructing or interfering with the full and free use and occupancy thereof by said plaintiff, the corps of vaccinators, the bureaux and officers aforesaid.” And further ordering “that until the hearing and decision of the said motion, the defendants, each and all of them, their officers, agents and employees, are hereby enjoined and restrained from entering into, taking possession of, holding, using, occupying or interfering in any manner with the use and occupancy of the said rooms and offices by the said plaintiff, its bureaux, officers, agents and employees, and from neglecting and refusing to permit the occupancy of said offices and rooms, or any part thereof, by the plaintiff, and from neglecting and refusing to give up to the use of the plaintiff and its corps of vaccinators the rooms and offices now and heretofore held by them, of which the said defendants, their officers or agents, may have taken forcible possession without an order of the court, and without due process of law, and
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from ejecting or removing any records, books, papers, furniture, instruments or apparatus belonging to the plaintiff from such rooms and offices ; and until the hearing and decision as aforesaid, the said defendants, each and all of them, are ordered to permit the use and occupancy of such rooms and offices as heretofore enjoyed by the plaintiff, its officers, agents and employees.”
At the time of granting’ the order, the police and the vaccinating corps of the health department were in joint occupation of the rooms so entered as aforesaid, which occupation by the police seriously interfered with and interrupted the sanitary work of the health department.
On the hearing of the motion, the officers of the police department claimed the right to the exclusive possession of the building in question ; and also read in opposition the following affidavit: City and County of New York, ss. :
John R. Voorhis, being duly sworn, says : That he was a police commissioner of the city of New York, from about the seventh (7) day of July, 1874, to the fourth day of May, 1876. That in the month of December, 1874, this deponent was chairman of the committee on repairs and supplies of the Board of Police, and had interviews with Dr. Charles F. Chandler, president of the Board of Health, Dr. Walter Dv F. Day, sanitary superintendent of the Board of Health, and Emmons Clark, Esq., the secretary of the Board of Health, in relation to accommodations for the corps of vaccinators of the health department. That this deponent sent for, and introduced to said Emmons Clark, the owner of premises known as No. 299 Mott street, in the city of New York, which premises this deponent thought adapted to the wants of said corps, and suggested to said Clark that the Board of Health hire accommodations of said owner, which said Clark declined,
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stating as the sole ground that the Board of Health had no funds for such purpose. That the Board of Health or its officers made application to be accommodated in the building, and premises known as Nos. 300 Mulberry street and 301 Mott street in the city of New York. That such application was not made as any right or claim to be accommodated therein, nor has the said Board of Health or its officers ever asserted or notified deponent of any right or claim of the department of health to be accommodated therein, or of, in, or to said premises. That the rooms upon the first floor of No. 300 Mulberry street, now occupied by the Bureau of Street Cleaning, were then practically unoccupied and not used for any necessary purpose, and the said officers of said Department of Health were willing and ready to accept the same for said corps of vaccinators, but made no claim of any right or title on behalf of the Health Department to occupy the same, but on the contrary, upon the objection of this deponent, ceased to urge the matter. That the Board of Police, for the purpose of accommodation merely, and without any claim or pretense of any right on the part of the health department to such rooms, caused the Bureau of Street Cleaning to be removed from the apartments then occupied by them, and tendered them to the Board of Health for their temporary use until they could provide themselves with funds for procuring accommodations elsewhere, and for no other time or purpose whatever. That this deponent at the time the said corps of vaccinators took possession of said rooms, notified and informed said Chandler, Day, and he thinks also said Clark, that the Board of Health ought to, or had better include in the estimate of expenses and supplies for the year 1875, the necessary funds and provisions for obtaining accommodations elsewhere than in said premises; and this deponent repeatedly, both before and after the time above speci
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fied, urged them, to make provision for such hiring and renting, and it was distinctly understood that the occupation of such rooms was merely temporary until such provision could be made, and the said Board of Health did not, nor did any of its officers or agents ever make any claim to any right to such rooms, nor make any objection upon being notified by deponent as aforesaid, and this deponent fully expected and believed that said Board of Health would in good faith obtain the means of obtaining accommondation elsewhere, and that their possession of said rooms would be temporary merely.
John B. Voobhis.
Sworn to before me, this ) 6th day of May, 1876, (
B. T. Burnham,
Notary Public, No. 230.
And also read other affidavits to the same effect.
The allegations in the affidavit of Mr. Voorhis were in substance controverted by affidavits read on behalf of the health department.
Other facts appear in the Special Term opinion.
The learned judge before whom the motion was heard at Special Term, rendered the following opinion.
Speir, J.—The plaintiff, on April 25th last, obtained a temporary injunction to prevent the defendants from forcibly dispossessing the plaintiff from its offices and rooms in the city building, 301 Mott street, where it had been theretofore established. The counsel of the respective parties appeared before the court on an order to modify the injunction on April 28th, and by consent, after partial argument, adjourned the hearing until the 9th of May, when the case was fully argued on the merits.
The facts alleged in the plaintiff’s papers are to the effect that up to the 19th of April last the two boards had had correspondence and interviews with each other
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in relation to the occupancy by the plaintiff of certain rooms on the first floor of 301 Mott street, which rooms were then and had been before, used and occupied by the corps of vaccinators and other employees of the health department; that on April 31st, Mr. Dilks, an inspector of the police department, with a detachment of four or more officers of that department, in pursuance of an order passed by it on April 19th and served upon the president of the health department, entered into and violently took possession of the three offices on the first floor, then occupied by the board, of vaccinators, without proper warrant or authority. That the defendants threaten and intend, by the use of physical force, to enter into and assume control and possession of other offices in said building occupied by the plaintiff. At the time of granting the injunction, the fact appeared from the papers that the rooms on the first floor were in the joint possession and occupancy of the plaintiff’s corps of vaccinators, and a small body of police, under the orders of the defendants; that such entry and occupation seriously interferes and interrupts the sanitary work of the plaintiff, and directly tends to obstruct and destroy the efforts of the board of health to promote the public health and to suppress contagious disease; that the president of plaintiff’s board has conferred with the Mayor, Comptroller and other officers of the city, for the purpose of obtaining other and suitable accommodations for its use, but has failed to obtain them ; that additional rooms have been built, under authority of Chap. 806, Laws of 1867, from the surplus funds contributed by the county of New York to the metropolitan police fund, which have been constantly in use by the present Board of Health for its offices and library, and containing large safes in the walls for the preservation of the books and papers —the records of births, marriages, and deaths in the city for the last seventy years ; that the third floor of said
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building is for the use of sanitary superintendent, the secretary, inspectors, the register of records, and Bureau of Vital Statistics.
The defendants do not deny any of the.foregoing allegations, but respond by what, for brevity and comprehension, may be called a plea of justification. They claim by a superior title to and control of this building in Mott street. They say it was erected in 1862, under the Laws of 1860, chapter 259, section 21, from police funds for police purposes, and that the health department did not enter the building till 1866, and that the additions made under the Laws of 1867, chapter 806, sec. 5, were from police funds for police purposes.
These funds were moneys of the city and county of New York, made applicable for the purposes of the department, and passed merely by the designation of police funds. The Legislature, in chapter 137 of the Laws of 1870, in the act to organize the local government of the city of New York, expressly enacted “ that such department (police) should only succeed to and take the property” then in the use or possession of the former police department, and that, “subject to the control and superior title therein of the city and county of New York.” The plaintiff's rooms were not then in the use and possession of the police department.
It is, I think, too plain for controversy, that whatever rights of property the boards of health and police departments have acquired, were created by chapter 335 of the Laws of 1873, sec. 117, whereby the officers of the preceding departments were required “ to deliver over to such successors all property of every kind, and all books and papers in their use and possession, respectively, belonging to the city or any department thereof.” These rooms, known as the health department, 301 Mott street, have not been in the use and possession of the defendant, as appears before me, except in the year 1873; the rooms of the vaccinating corps
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were used by the defendants but again taken into possession by the plaintiff in 1874, as they had been by prior boards of health without any agreement to give them up. The title of the building is in the city, and some of the rooms were built especially for the plaintiff. The two departments went into the use and possession of their respective rooms and their offices, upon the organization in 1873, as of course. It is to be presumed, that as the plaintiff, upon its organization, was installed by the government of the city, which was bound to furnish it a place, was then lawfully there, and has lawfully remained there ; and it will also be assumed that the proper and necessary arrangements were then made, and the Board of Health then acquired rights of which it could not be dispossessed by any one not having a superior title.
The defendants, as we have seen, claim title through the Metropolitan Board of Police, and apparently upon the ground that the whole building, from Mott to Mulberry streets, is called the Central Office of the Police Department. Ho law or authority is shown to sustain this claim but that of the designation of the whole building—not even title by possession, for the whole building has not been occupied by either Board since the law of 1873, which prescribes the powers and duties of both Boards. The provisions made by this law for one department are not in any way subject to the control of another co-ordinate department, nor can one be dispossessed by another by force and without warrant of law.
The city has the title to the premises in question, erected the buildings, established the two Boards in possession, and has furnished the necessary means for carrying on their several alioted work—not for their own benefit or advantage, but for the great good of the people of the city whose public servants they are. The defendants have assumed the responsibility of
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forcibly entering into one -of the apartments of the plaintiff while in the discharge of grave and important duties confided to it by law, subject to city authority, largely affecting public interests, and threaten to eject its officers and employees from their peaceable possession of the remaining apartments. The court is appealed to for protection, and is asked for equitable relief. It is too plain that the general and public interest will suffer irreparable injury should the bureau of health be turned out of doors and be obliged to suspend the active work committed to its hands for a single day. The established rule of a court of equity is that the court is bound to interfere whenever it has grounds for believing that its interference is necessary to prevent abuse, injustice, oppression, or the violation of a trust.
The injunction must be continued against the defendants.
Upon this decision an order was entered continuing in force the injunction theretofore granted, and ordering : “ that the above named defendants, and each of them, their officers, agents, employees and servants, be, and are hereby, severally enjoined and restrained from entering into, taking possession of, holding, using, occupying, or in any manner controlling the use, occupancy, and disposition of rooms and offices now and heretofore used held and occupied by the plaintiff herein, ‘The Health Department of the city of Hew York,’ its corps of vaccinators, its bureaux, officers, agents and employees, at premises and in building known as number 301 Mott street, in said city of Hew York, and in anywise from obstructing, hindering or interfering with the full, free and exclusive use and occupancy thereof by said plaintiff, the corps of vaccinators and bureaux aforesaid, or from neglecting and refusing to permit the use and occupancy of said rooms
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and offices or any part thereof by the plaintiff, its corps of vaccinators and bureaux aforesaid.”
From this order defendants appealed.
Charles F. MacLean, counsel to the Board of Police, attorney and of counsel for appellants.
No points in behalf of the appellant came to the hands of the reporters.
W. P. Prentice, attorney for respondents, and W. C. Whitney, counsel to the corporation, and W. P. Pren tice, of counsel, urged:
I. The granting and continuing of injunctions rest in the discretion of the court, to be governed by the nature and circumstances of the case. When granted upon a thorough examination of the whole case pendente lite, where immediate relief is necessary to prevent irreparable injury, and its continuance involves nothing of importance except delay, until the case can be tried and its issues upon important questions decided, the action of the court below will not be reviewed (Vandewater v. Kelsey, 1 N. Y. 533 ; Seldon v. Vermilye, 1 Ib. 534; Paul v. Munger, 47 Ib. 469). And this is so, even though the answer deny the equities of,' the complaint, while in our case there is no answer and no such denial (Roberts v. Anderson, 2 John. Ch. 202 ; Carpenter v. Danforth, 19 Abb. 225 ; Attorney-Gen. v. Cohoes Co., 6 Paige Ch. 133 ; Malcolm v. Miller, 6 How. Pr. 456 ; Du Bois v. Budlong, 15 Abb. 445 ; Litchfield v. Pelton, 6 Barb. 187 ). The power to grant the injunction in the first place cannot be denied. The necessity of this temporary injunction to prevent irreparable injury fully appears in the affidavits and in the papers annexed. The learned opinion of the court below on granting the motion exhibits in the clearest light the important questions involved. Most of the
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facts upon which these issues depend are admitted, and any other determination of the rights of the parties is impossible at this stage of the case, or until it can be tried. Meanwhile the defendants have no injury. The order continuing the injunction appealed from should, therefore, be affirmed.
II. It is plain that the general and public interests will greatly suffer if the work of the plaintiff be interrupted, and if the defendants be not restrained from their violent and unlawful acts, justified by them under their assumed legal title. lío law or authority is shown by them to sustain this claim. “The city has the title to the premises in question, established the two boards in possession, and has furnished the necessary means for carrying on their allotted work, not for their own benefit or advantage, but for the great good of the people of the city, whose public servants they are. The defendants have assumed the responsibility of forcibly entering into one of the apartments of the plaintiff, while in the discharge of grave and important duties confided to it by law, and threaten to eject its officers and employees from their peaceable possession of the remaining apartments.”
In accordance with its long established rules, a court of equity was bound, in such a case, to interfere upon this application for relief (2 Story Eq. Jur. §§ 861, 903, 914; Davis v. The Mayor, 1 Duer, 451 ; People v. Sturtevant, 9 N. Y. 263 ). A misuse of property may be enjoined (Brown v. Mayor, 3 Barb. 254 ). So also an excess of power (Lawrence v. The Mayor, 2 Barb. 577 ; Christopher v. The Mayor, 13 Barb. 567 ; Shepherd v. Wood, 13 How. Pr. and cases cited. See also 14 N. Y. 534 ; 26 Wend. 132 ; 29 Barb. 396 ; 35 N. Y. 375 ).
III. There is no force in the objections urged on defendants’ part. 1. That the defendants were at the time in the possession of apart of the premises, viz., the rooms of the vaccinating corps. 2. That the order
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of injunction is in form mandatory, (a). There is no dispute that at the time the order of April 25 was granted, the plaintiff still held possession of those particular rooms. (6). The plaintiff never permitted Dilks and his men to enter its rooms to take possession of them. The police officers were only there under protest. Their possession was a qualified one. The sanitary superintendent, Mr. Post, the clerk, Dr. Janeway, Dr. Chandler, only say, “ such possession tends to obstruct and prevent the sanitary work of the corps of vaccinators.” Dilks’ affidavit refers only to the evening of April 25 ; and also admits that the corps of vaccinators immediately returned to their work. There is nowhere an allegation that at the time the order of April 25 was granted, the plaintiff was not in possession of its rooms, though obstructed and annoyed by the defendants’ agents therein. These facts appeared upon the argument, (c). The court would not permit its order to be set. aside and Dilks to remain, contrary to its terms and spirit, in the possession of rooms so unlawfully acquired. It is of elementary law that: “ A writ of injunction may be described to be a judicial process whereby a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ. The most common form of injunctions is that which operates as a restraint upon the party in the exercise of his real or supposed rights. It is generally preventive and protective, rather than restorative, although it is by no means confined to the former (2 Story Eq. Jur. 861, 862, 11th ed. See also 40 N. Y. 191 (Corning v. Troy Iron & Nail Works).
IV. This court will assume that the plaintiff is rightfully in possession of its offices and rooms until the contrary be shown. The plaintiff’s predecessors, to whose duties and powers it succeeds, having lawfully entered into this building, and having been per
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mitted by the lawfully constituted authorities to remain there, in the use and possession of these offices and rooms, the presumption is necessary, by the ordinary rule of law, that this same state of things continues to exist, and the same authority, especially since the plaintiff, immediately upon its organization, was installed in this place by the government of the city, which was bound to furnish it a place. It will be assumed that the proper and necessary arrangements were made when the plaintiff’s predecessors first entered into possession of these rooms. The intention of the Legislature to join the offices as it did the work of the two boards, is evident from a consideration of the law, §§ 11, 12, 14, 17, 30, of chap. 74; Laws 1866, § 2, chap. 686 ; chap. 137, Laws 1870; § 74, § 117, chap. 335, Laws 1873. The police department have only succeeded to the property “ then in the use or possession of the former police department,” and that “ subject to the control and superior title therein of the city and county of New York." The plaintiff had all the powers, rights, and authority of previous boards of health conferred and vested in it by §§ 80, 82, 117, of chap. 335, and § 12, chap. 757, Laws of 1873, and chap. 686, Laws 1874. The board of police had all former duties of preceding police departments enjoined upon it by § 6, chap. 755, Laws 1873. The reasons still exist for this location of the plaintiff, and the defendants have never had, and its predecessors did not after 1866, have the rooms and offices used, and held by the plaintiffs and its predecessors, under legal control.
Y. The court will also take cognizance of the fact that, by the charter laws, the provision for expenses and for rooms and offices for the departments of the city are made as of January 1, and for the year, and that it is now too late, in 1876, to make the provision and the changes necessary, if the request
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of the defendants should be complied with, that the plaintiff seek other quarters and offices. The plaintiff is at the moment powerless to make a change ; and by deferring motion beyond the proper time, and by this delay, the defendants have, themselves, fixed the plaintiff in its present location for the year 1876. The defendants should now be held estopped, and should be restrained in equity from enforcing their claim. Were this claim even legal, public interest cannot be exposed to injury through the defendants’ neglect to take the proper measures, and in due time. The intent of the Legislature in the various enactments affecting the control of the city property; the relations of the city departments among themselves, and to the central power, is to be ascertained from all the acts, and in the charter of 1873, from a consideration of the whole law. It will be seen that the system has now been established, by which all the general powers, and the control over the general departments, in matters not immediately and specially committed to them, by law in express terms, is in the city government proper. Such a claim as the plaintiff now makes is repugnant to the spirit of these laws, and has no foundation in the terms of the act of 1873.
YI. The police commissioners and the health commissioners, under the law of 1873, though occupying the places of similar officers preceding them, are not the same officers; are not entitled to their privileges, nor bound by any of their concessions, but must find the rale of their rights and powers in the law creating them. Thus it was determined by Judge Pratt in the Washington Market cases, that the injunction previously issued against the metropolitan board of health, did not bind this plaintiff. An analogous question was discussed in the police justices’ cases (Wenzler v. People, pp. 516, 522 ; People v. Morgan, 5 Daly, 161 ), where it was held that those officers
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were not justices of the peace, though filling the places of such officers on the criminal side of these historical courts. In People v. Draper (15 N. Y. p. 532, especially page 540), the Officers of the metropolitan police district were held not city officers subject to the provisions for the election of city authorities in the constitution (see also People v. Shepard, 36 N. Y. 285 ). In like manner, in Heister v. Board of Health ( 37 N. Y. 661 ), it was held that the metropolitan health commissioners were not city authorities. Under the law in force 1866 to 1870, the health and police boards were composed of State officers for the metropolitan district. The whole theory of administration was thereafter changed. We have come out of the metropolitan into the municipal system, and both plaintiff and the defendants are now parts of the city government. They are different officers from those of 1866 to 1870, by the very law of their being. Therefore, it is not material how these former officers equalized or arranged their expenses in those years. Since that time, by chap. 137, Laws of 1870, § 74, the title of the city to their building lias been determined by the legislature. It is true that prior to 1873, that is, béfore these officers were appointed who are now parties, certain expenses had been borne in common. The board of health existing at that time, purchased, in one or two years, fuel and gas of that board of police. At present, however, the comptroller settles all these bills for the city, and since 1873, it has not been found either advisable or necessary to separate the expenses of the different parts of the building as formerly. In the same manner supplies have been purchased from the department of charities and correction. • As well might this latter department now say that this purchase of supplies for the small pox hospital transfers its title and charge to them, as the defendants say that these former purchases of fuel and gas had the effect they claim.
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V1X. One department of the city government certainly cannot be dispossessed, by another co- u dimite department by force, without warrant, legal process, or authority by law. Nor can the defendant be permitted to use, as they threaten, the police force of the city for such unlawful purposes. The entry of the plaintiff into its rooms under lawful authority is admitted. Of them the defendants have not since keen in possession. The building itself was built under authority of chapter 259 of the Laws of 1860, § 21, and chapter 806, Laws 1867, § 5, from “surplus moneys contributed by the county of New York.” These moneys could not be used except by authority of the legislature. The designations of “police fund ” or “ central department'of the metropolitan police,” no more gives a property therein to the defendant, exclusive of the city, and the other departments for whose use they were intended, than the designation of “police courts” and “police court houses” under subsequent laws, and of “ police justices,” gives them the courts, court-rooms, and judges, over to the aggressive jurisdiction of these defendants, whose title, powers, and duties are very definitely prescribed and limited by law. Obedience to the law, regard for public interests, and the public service, due moderation in the exercise of their proper authority over the police force of the city, and in the use of the public property, must be required of the defendants. They have wilfully taken upon themselves a grave responsibility. and set an example of lawlessness and violence in which they should be restrained by a court of equity. The order appealed from should be affirmed, with costs.

The views expressed by the learned judge, at the special term, in his opinion upon making the order continuing the injunc

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tion against the defendants, fully sustain his direction.

It is at all times desirable that departments created and organized for the efficient and discreet performance of grave duties in the public service, should co-operate for the general welfare, and in doing so, not only present an example of respect for the law, but scrupulously avoid acts of violence towards each other; neither would it be amiss for them to endeavor to observe the courtesies and conventionalities that prevail among the respective branches of the civil service in most civilized communities. Nor does it detract from this theory of what their mutual relations should be, that as in the present instance as well as in all others where litigation arises from their controversies between themselves, its expenses on both sides are drawn from the public treasury. Not only do such variances militate with the highest discharge of duty, but they unjustly increase the public burden.

The premises in question were purchased, and the buildings constructed at the public expense, and are the property of the public. The Health Department, and the Police Department have occupied portions of them for some years. The latter desired to occupy the rooms of the former, and forcibly took possession of some of them, when the former brought this suit and procured the injunction order restraining them, and forbidding the continuance of such forcible occupancy, which is now appealed from.

Where a person is in the possession of real estate, even though he may be amere tenant by sufferance, or has not paid his rent, or holds over after the expiration of his term, the owner can only regain possession by process of law. Public policy forbids a resort to violence.

If, as is claimed by the Police Department, the Health Department came in under them, to hold the

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rooms at their pleasure, still they have no more right to resort to force to re-possess themselves of the rooms occupied by the health department, than any other landlord in the community would have to resort to force agaiust his tenant. It is not shown that the legislature has attempted to grant any such privilege to the Police Department. But the legislature has made it the duty of the officers and men of the police department to enforce all the ordinances and regulations of the former, and to report all violations of the same, and otherwise co-operate with the Board of Health for the public good (Laws of 1867, chap. 956, §§ 3, 31). The proofs presented strongly indicate that it is best for the public health and welfare that these two departments should occupy ad jacent offices in the same building, and the action of the legislature and of the municipal authorities, tends to show that such was the intention from the time of the plaintiff ’s creation.

. If there was any irregularity or defect in not giving due notice of the application for the injunction at the special term, the proceeding to the hearing of that motion, without presenting the objection either by the papers or otherwise, must, at this stage, be deemed to have been a waiver of it.

The order appealed from should be affirmed, with costs of appeal and disbursements.

Van Vorst, J., concurred.

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