94 N.Y.S. 386 | N.Y. Sup. Ct. | 1905
These plaintiffs aslc temporary injunctions restraining the police in the borough of Manhattan from interfering.with them. They allege unlawful trespass on their premises, forcible entry, the posting of policemen in front of plaintiff’s premises, and interference with persons visiting plaintiffs for lawful purposes. The police deni' that they have trespassed or used force except in the cases of Iiowley and Johnson, where they say 'they made arrests for alleged violation of section 351 of the Penal Code relating to pool selling and they justify their visits to the plaintiffs’ premises by allegations that they are performing a duty enjoined on them by the Greater New York Charter, section 351, to inspect places having excise licenses and gambling houses. They allege that each of the plaintiffs maintains premises which are on some list maintained by the police as places where it is suspected that the law is violated and they say they are actuated only by lawful motives and by a desire to do their duty.
This form of action has become quite frequent of late. There is no dispute about the law; there is no question as to the right of the citizen to apply to the court to enjoin trespass
These cases come before the court on motions, on affidavits for injunctions pending trial. The defendants, police officers, deny the facts alleged in the complaint and moving papers. Applications for preliminary injunctions are governed by principles of law as well established as the principles which the plaintiffs assert as the basis for their actions. “ The granting of a temporary injunction is, to a very considerable extent, discretionary with the court, and in cases where the action is brought to obtain a permanent injunction, so that, in effect, a temporary injunction gives to the plaintiff all the remedy to which he would be entitled if he had finally succeeded in the action, it is not, by any means, a matter of course to grant a temporary injunction, unless the right of the plaintiff is clear and the injury inflicted upon him by the act sought to be restrained is irreparable. If there is doubt as to the right of the party, or whether the defendant is overstepping the powers which the law gives him, or whether the plaintiff is in such a situation that he is entitled to equitable relief, the arm of' the court will not be stretched out to aid the plaintiff and to give him, during the pendency of the action, all the relief which he seeks and ma.y obtain by a final judgment.” Weiss v. Herlihy, 23 App. Div. 608. The principle here announced is familiar; it is applicable to this kind of suit in equity as well as to all cases where the plaintiff, in advance of a trial on the merits, where he and his witnesses are produced in court and examined and cross-examined and where the defendant is also before the court, seeks to obtain preliminary relief, notwithstanding the issue raised.
Each case depends upon its own facts. Each case as presented requires careful examination by the court so as to avoid doing wrong to the plaintiff by denying him an injunction and to the defendant by interfering with his rights. Public officers must not violate the law, and at the same
I think this is the all important question rvhere the plaintiff comes into court asking a temporary injunction; is he acting in good faith, does he come into court with clean hands quoad the very cause of action alleged? And so, as stated on the argument, no matter what these plaintiffs may have been, and no matter what the premises may have been, if they present an honest case they are entitled to relief. But if, disregarding the charges or suspicions of the police, the plaintiff’s story lacks this important element, if it appears "that he is masquerading and attempting to deceive the court as to- his occupation or the character of his premises, seeking to obtain the writ of this court by deceit and tick, his action is almost as bad as the unlawful oppression which he charges against the defendants.
How with these principles in mind, and I refer to them with some hesitation — there is nothing new in what has been stated — but because of the earnestness of the learned counsel who represents all these plaintiffs, no matter in what part of the borough of Manhattan they may be located, I proceed to the individual cases presented.
Oraushaw says he is a dealer in teas and coffees, carrying
George Howley conducts a liquor saloon at No. 124 University Place. The police say that three men were recently arrested on the premises for book-making. They were held by the magistrate but the grand jury failed to indict them. There is no charge of violence or that the police occupy plaintiff’s premises. The charter enjoins on them the duty of inspecting places where liquor is sold. The defendants deny improper or unlawful action. I do not think plaintiff makes out a case for a temporary injunction.
Thomas F. Murphy says he is conducting the cigar and tobacco business at No. 29 West Twenty-fourth street. This is near Sixth avenue. The premises consist of a private house, the lower floor displays publicly a sign “ New York and Porto Rico Tobacco Company.” Several tobacco dealers, among others Mr. Wassermann, who was recently described before me at a trial in Special Term as the largest importer of Havana cigars in the country, certifies that plaintiff conducts a reputable business. The defendants’ only explanation of their continued inspection of plaintiff’s premises is that the place is on a list of suspected places
There are two additional matters to which I should refer. When the police are summoned to a court of equity in cases of this kind, it seems to me the answering papers should be prepared after full investigation and that all the facts and the surrounding circumstances should be laid before, the court. The defendants’ papers in these cases are far from complete; the affidavits appear to be made on some1 general form or blank containing generalities and conclusions. If the cases are such that injunctions should' issue, it is important that all the facts should be detailed. These suits are no different from other applications for injunctions.
The other matter to which I wish to refer is the bringing of these' suits in this county. The premises are all in Hew York county, the defendants reside there, the alleged trespass occurred there. The law provides that in suits such' as these against public officers, the venue should be iaid in Hew York county. It is true the plaintiffs allege a residence in Kings county, but I think the litigations belong in Hew York county and should be disposed of there.
Ordered accordingly.