216 A.D. 6 | N.Y. App. Div. | 1926
We think it was an abuse of discretion on the part of the learned justice at Special Term to grant this injunction against the police authorities pending the trial of the action. There
The plaintiff, claiming to be an association of reputable business men meeting at the West Thirty-third street address in Manhattan and at the so-called branch club house in Atlantic avenue, Brooklyn, says that the club is organized for social purposes, with a gymnasium at the Thirty-third street establishment for the use of the members, who are reputable citizens and who are not engaged in any violation of the law. On the other hand, the police authorities insist that the so-called “ clubs ” were gambling houses conducted by well-known professional gamblers under indictment in New York county awaiting trial for conducting a disorderly house. The defendants make affidavit that when the police visited the “ club ” on January 8, 1926, in consequence of complaints received that gambling was conducted in the premises, they found that the “ club ” room was protected by “ ice box ” doors eight inches thick, equipped with peep holes, and before reaching these doorways the club members and the police had to pass through an iron-barred gate which was locked and opened by a doorkeeper stationed inside, who, the police say, has been arrested several times under various aliases in other gambling rooms. The windows in the rear of the club were barred, in the front they were covered by dark shades. On the walls were displayed racing charts, and torn lists of race horses were found about the floor which were presented to the court on the argument. There was a table covered with green cloth in the center of the room with high boards on the sides, which the police say is used in the “ game of craps.” The plaintiff says it
The police say that when they entered the premises on January 8, 1926, about five-thirty p. m., they found therein fifty-six men, many of whom had been arrested from one to fifteen times previously in various gambling houses in the city. The president of the plaintiff association says that on January eighth the police arrested a number of the club members who were taken to the police station where they were released on bail. The next morning they were arraigned before a police magistrate in Manhattan, and the magistrate, “ after listening to the arresting officer, * * * refused to entertain a complaint against the members of the association arrested and honorably discharged them, stating to the officer at the time that in his opinion there was not sufficient evidence to entertain a complaint.” Why the magistrate should have “ refused to entertain a complaint ” is not very clear, but having refused to receive the complaint of the police or to receive evidence, his alleged opinion that there was not sufficient evidence is not as important as it might be if he had taken the complaint and proceeded with the examination as directed in-the Code of Criminal Procedure. This action, or lack of action, on the part of the police magistrate is referred to several times in the plaintiff’s papers as affording corroboration of plaintiff’s assertion that its alleged club on Thirty-third street and the alleged members of the association are respectable and law-abiding, although what probative force this circumstance has is not apparent. The plaintiff alleges that the branch club on Atlantic avenue is also entirely respectable and law-abiding, but that the police insist on visiting the club rooms from time to time, searching the premises and annoying and harassing the club members who resort to this Atlantic avenue branch and who are all reputable business men. The police, on the contrary, say that complaints have been received that gambling is carried on at this branch establishment, that they found therein a table commonly used for a gambling game. One of the policemen makes affidavit that on January 23, 1926,
Now, considering all these facts, it would seem that in the exercise of a wise and legal discretion the court should not have interfered by injunction with the police in the performance of their duties, especially when it is conceded that the police commissioner is actuated by proper motives and the desire to do his duty. The learned justice at Special Term was so impressed with the defendants’ honesty of purpose that, although he granted the plaintiff’s motion for an injunction, he made the rather unusual direction in his opinion that the order enjoining the police should be prepared by the corporation counsel or the police commissioner, “ in such form that it does not interfere with or restrain any legal or lawful right of the police,” which of course is rather indefinite.
But we think this preliminary injunction should not have been granted. There is nothing new in this class of litigation. These same conflicting stories concerning the character of premises raided or attempted to be closed by the police have been before the courts before with similar fervid appeals for the protection of the citizen from unjust attack, and with citation of the Civil Rights Law and the Fourth Amendment of the United States Constitution
In the case of Delaney v. Flood (183 N. Y. 323) the Court of Appeals through the late Judge Werner declared the proper attitude of a court of equity towards interfering with the police in the performance of their duties. Referring to the duty imposed upon the police to preserve the public peace and to repress and restrain unlawful and disorderly conduct, the learned judge stated that the plaintiff in that case, who conducted a so-called “ Raines Law Hotel,” claimed that he was conducting a lawful business in a proper manner and that he was maliciously oppressed by the police. The police on the other hand denied the plaintiff’s allegations, and their proof tended to show that there was basis for the suspicion that the plaintiff’s “ hotel ” was a place where disorderly practices prevailed. Judge Werner said (p. 327): “ But we are not now concerned with the truth or falsity of these conflicting assertions. They are referred to merely for the purpose of showing that, upon the point which is determinative of the question whether the defendant acted lawfully or otherwise, there is a sharp controversy of fact. If the plaintiff did in fact maintain a disorderly place, it was the defendant’s right, if it was not his duty, to warn persons about to enter against becoming participators in plaintiff’s violation of the law. The whole question, whether the acts of the defendant and his inferior officers were legal or not, depends
Each case must depend upon its own facts. In the present case we think no case was made out justifying the preliminary injunction and that the action should first be tried and determined on the merits.
It follows that the order granting plaintiff’s motion for an injunction pendente lite should be reversed upon the law and the facts, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Rich, Jaycox, Kapper and Lazansky, JJ., concur.
Order granting plaintiff’s motion for injunction pendente lite reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Laws of 1901, chap. 466, § 315, as amd. by Laws of 1914, chap. 455.— [Rep.
Now Penal Law, § 854.— [Rep.