91 N.Y.S. 929 | N.Y. App. Div. | 1905
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, one of which is 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. The mother of the two rooms upstairs is used as a clothes room 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 jfloor there is a third room occupied by the Sunny Brook Pleasure Olub, which seems to be an incorporated social club. It is undis
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. Artcher, 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 of N. Y., 55 N. Y. 390; People ex rel. Negus v. Dwyer, 90 id. 402; Tribune Assn. v. Sun Printing & Pub. Assn., 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 Anally 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 compre-. hend 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 bebas 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 the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1903, chap. 486) declares that places where liquors are sold, by reason of liquor tax certificates, are public places, and gives to
The case of Weiss v. Herlihy (23 App. Div. 608) is in many respects similar- to the one in hand. There the defendant had stationed police officers in a restaurant, ostensibly t-o prevent gambling therein, and the first department by a divided court refused to
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
Hirschberg, P. J., Bartlett, Woodward and Jerks, JJ., concurred. ■
Order modified by striking out all allegations charging the defendant with oppression, and as modified affirmed, without cost's.