Weiss v. Herlihy

49 N.Y.S. 81 | N.Y. App. Div. | 1897

Lead Opinion

Rumsey, J.:

The plaintiff claims to be the lessee of a portion of Ho. 34 Second avenue in the city of Hew York, in which there has been established, as he' says, a restaurant business which, since the 20th of July, 1897, has been owned by him. The defendant is a captain in the police department in the city of Hew York, commanding the fourteenth precinct, in which the plaintiff’s restaurant is situated. This action was begun on the 25th day of October, 1897. The plaintiff alleges that since the twelfth day of that month the defendant has kept policemen stationed in his restaurant, against his remonstrances and complaints ; that he has repeatedly requested the defendant to compel those officers to remove from his premises, but that the defendant has refused to do so, and has insisted upon keeping said officers there until he should be prevented by some higher authority from doing so. The plaintiff says that the continued presence of a police officer, although in plain clothes, in his place of business has resulted in serious diminution of his business and a falling off in the number of people who have frequented the place, and a decrease in his profits, which amounted, at the time of the bringing of the action, as he says, to about $400. ' He further alleges that if the policeman still continues to be stationed in his restaurant it will result finally in the complete destruction of his business, because his patrons all will have been driven away. The relief demanded is a perpetual injunction restraining the defendant from maintaining the police officer in the plaintiff’s place of business, as well as a temporary injunction during the pendency of the action; and, in addition, the daniages which the plaintiff claims to have sustained, besides the costs of the action.

The defendant, in his answer, substantially admits that since the 12th of October, 1897, he has directed certain officers to remain ’ upon the premise's for the purpose of preventing violations of the law thereon, and to enable him to procure evidence against the -proprietor and other persons. He alleges that for a long time this place has been a notorious gambling house, and that violations of the law were continually being permitted thereon, and that the officers were stationed there simply to prevent or detect such violations of the law.

Upon the complaint and affidavits which it is claimed sustain its allegations, the plaintiff procured an order to show cause why a temporary injunction should not be granted substantially as prayed for in thé plaintiff’s complaint. Upon the hearing of this order to show cause affidavits were read on the part of the defendant, and it would seem that replying affidavits were permitted to be produced by the plaintiff. The affidavits produced by the defendant establish that this alleged restaurant is upon the ground floor of the building Ro. 34 Second avenue; that it consists of a room in front in which are tables and chairs where customers may sit for the purpose of being served ; that immediately in the rear of that is a bar and back of that is a room, the door of which is kept closed and access to which is prevented, except to those persons who are especially permitted to go in there and that this door is fitted with some sort of an aperture through which persons who attempt to enter the room may be examined so that it can be seen whether it is safe to admit them or not. It appears that,, before the 20th-of July, 1897, at which time this business is said to have been bought by the plaintiff, the business had been carried on by one Max Hochstein, who on that day sold it to' the plaintiff and took back as security for the purchase price a chattel mortgage upon the property. It is fair to assume, however, from all the testimony in the case, that Hochstein still remained to some extent in charge of the business and that he was present there a considerable portion of the time. It appears further from the-affidavits of the defendant that from and after the month of October, 1896, numerous complaints were made at police headquarters that this place was kept as a common gambling house; that it was investigated thoroughly and that the reports made to the defendant as captain of the precinct were such as to satisfy him that gambling was regularly going on in the back room, but that the room - was kept lockedthat there was an-aperture in the door especially constructed to observe the movements of any officer who might enter the front room, and that whenever one did enter, access to the rear room was. prevented' until the indicia of gambling might be removed and persons in the room might have an opportunity to escape. At different times during the summer and fall of 1897 various persons were arrested for carrying on gambling on said premises, and upon an examination were held for trial or to await ■ the action of the grand jury, but it appears that in some of the cases upon the subsequent hearings the charges against those particular persons were not substantiated and they were not convicted. It does appear, however, by the testimony of several of the policemen that at various times during the early part of the month of October, .1897, and before this policeman was stationed upon the premises, they had actually observed gambling going on in this rear room and they had been prevented from access to the room so that they were unable to ascertain the persons who were engaged in it or to make any arrests, but it appears quite satisfactorily from the papers that, whenever the officers inspected the premises, the gambling house was running at full blast, and that it was only while the officer was actually there that the violation of the law was interrupted. It appears, moreover, that Hochstein, who was the owner of this business before the 20th of July, 1897, and who retained considerable interest in it after that time by reason of his chattel mortgage, was a convict who had served a term in the penitentiary for a petty crime, and that he was a man of notoriously bad character, and that the place was still a resort of men of notorious evil reputation. It was made to appear, by affidavits presented on the part of the defendant, that the sale of food and meals, which was the ostensible business carried on at that place, ' was very small, and that very few people were in the habit of resorting to it for the purpose of obtaining any refreshment of that kind.

While the plaintiff’s affidavits endeavor to meet and answer these charges against this place, yet it is Amry apparent that, in the main, they were true, and that it had acquired.and maintained the reputa-, tian of being a common gambling house, and of being conducted principally and almost entirely for that purpose.

We have then established by the evidence this condition of affairs: The plaintiff is keeping a common gambling house and a resort of bad people in a place which has. been notorious as such for over a year. His violation of the law is persistent. It has been the subject of complaint from many persons who live in the neighborhood. The defendant, being the captain of police in charge of the precinct, is endeavoring to repress that crime. He has been utterly unable to do it in any other way than by stationing a police officer upon the premises for the purpose of observing and inspecting what goes on there, and in that way trying to prevent the commission of the crime, as it is his duty to do. The question presented upon this appeal is whether, in view' of this state of facts, a court of equity will interpose, by the process of injunction, to prevent what is claimed to be a trespass in aid of a person who is engaged- openly and flagrantly in the violation of the law, so that this open and flagrant violation may continue without any interruption ■ on the part of the legal authorities. 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 thé relief which he seeks and may obtain by a final judgment. Bearing in mind these rules, which are' well settled, let us examine whether the plaintiff has shown ■ a violation of law on the part of the defendant which is so clear that equity should restrain it; and, if that be so, whether the plaintiff himself is in such a situation that he should not receive a benefit from the extraordinary process of a court of equity.

It is the duty of defendant, as a captain of police, to prevent all violations of law in his precinct, and restrain them so far as possible, and, if he is unable to prevent such violations of the law, to arrest the offenders and, if possible, bring them to punishment. His duty is not solely to arrest those who are guilty of crime, and cause them to be punished for the Offenses which they have committed, but it is to preserve order in the precinct and prevent crime, and this duty. is quite as important as the duty of punishing the crime after it has been committed. By section 282 of the Consolidation Act (Laws of 1882, chap. 410) it is especially made the duty of the police force, at all times of the day and night, and the members of such force are thereby empowered, to prevent crime and preserve the public peace. To that end they are authorized to observe carefully and inspect all places of business having excise or other licenses, and all gambling houses, and to prevent violations of all laws and ordinances in force in the city of Hew York. That section of the statute was not original in the Consolidation Act, passed in 1882, but it was the law of the State for-many years, in reference to the city of Hew York, and it has been continued in the charter of the greater city. (Greater H. Y. Charter [Laws of 1897, chap. 378], § 315.) In the plaintiffs place, as is made to appear by the record, there is a bar at which liquors are sold. While the plaintiff does not state that he has a license, or a certificate under the liquor law, to enable him to lawfully deal in those articles, yet, as he has a bar there, it must be assumed, in the absence of proof to the contrary, that he is lawfully engaged in selling, and, therefore, that he has an excise license. He has, therefore, one of the places which, having a license to sell liquors, is especially subject to surveillance, within the provisions of section 282 of the Consolidation Act. If anything can be established by evidence, it is thoroughly proved in this case that the house kept by the plaintiff is a common gambling house ; and for that reason also it is made the duty of this defendant, not only to arrest offenders, but, for the purpose of preventing the crime, to observe carefully and inspect this place at all times of the day and night. That is the duty in which the defend-, ant is engaged, and the only question is whether or not this inspection and observation, either in the extent to which it goes, or because of the place where the inspector is stationed, is so clearly a violation of the law that a court of equity will exercise its discretion to restrain it. The object of the inspection and observation, as shown by the statute, is not only the punishment of crime, but the prevention of it, and the latter is even the more important of the two. So long as the duty of preventing crime is imposed upon the captain of police, he certainly must be vested with a broad discretion as to the strictness of the inspection. It is his duty to make it so strict . that the violations of law cannot take place, arid, unless he goes beyond that, the- courts will not. interfere in that regard. It cannot be said,, upon the facts shown here, that. this inspection is any too close, because it appears that, before the police officer was stationed there, the violations of the law were renewed whenever the visits of the police ceased.

But if it should be conceded that the plaintiff had established what . would be a good cause of action in equity under ordinary circumstances, yet we do not think that the facts in this case are such as to commend, him to the equitable jurisdiction of the court, or within well-settled principles to authorize the court to issue its extraordinary process for his protection. The rule is well settled in equity that he who comes into equity must come with clean hands; or, as it is otherwise stated, he that hath committed iniquity shall not have equity. This rule, of course, does not go so far as to deprive one of the privilege of going, into equity to enforce his property rights simply because he is generally of a bad character, or because he is engaged in some violation of law in another case than the one in which he seeks an interposition of the court. When a court of equity is appealed to for relief, it will not go outside of the subject-matter of the controversy and make its interference depend upon the character and conduct of the moving party in no way affecting the equitable rights which he asserts against the defendant. But if the rights he asserts, and for the protection of which he asks the interposition of the equitable power of the court, are in themselves essentially illegal or a violation of law, then his prayer will be refused and he will be left to the ordinary legal remedies and will not receive any benefit from the equitable powers of a court of justice. (1 Pom. Eq. Juris. § 397 et seq.) That is precisely this case. This plaintiff,, according to the testimony made to appear upon this record, is .persistently and flagrantly using these premises for a disorderly house in violation of the statute. He asks the help of the equitable power of the court practically for the purpose of permitting him to continue that violation of the law. It is apparent that an injunction could have no other effect, and that just as soon as the observation and inspection of the police was withdrawn from this place, this gambling house would be reopened to the scandal and inconvenience of the neighborhood. A court of equity will not permit its process to be perverted to any such purpose. Assume that the legal rights of this plaintiff are being infringed. If that be true, he must enforce them by the proper proceedings at law, and if he can do so, undoubtedly his rights will be protected or he will be recompensed for any violation of them; but if the law affords him no protection, equity will certainly not help him by putting its hand upon the officers of the law who are seeking to perform their duty — although possibly in a manner oppressive to this plaintiff — and restraining them for no other purpose than that this man may go on with his violations of the law unmolested and unwhipped of justice. If the defendant is violating the law, undoubtedly the law will afford some way for preventing his action or punishing him if he does it. The plaintiff is clearly doing so in respect of the very matter and for the benefit of the very premises as to which he asks an injunction. For that reason he will receive no aid from the equitable side of the court, but must be left to whatever remedy the law affords him in the matter. For these reasons, the order denying this temporary injunction was' correct and should be affirmed, with costs.

O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., and Barrett, J., dissented.

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Dissenting Opinion

Barrett, J.

(dissenting):

The plaintiff is the proprietor of a small restaurant at 3STo. 34 Second avenue in this city. He seeks in this action an injunction to restrain the defendant, who is the police captain of the fourteenth police precinct, from stationing police officers permanently within his premises. These officers enter the plaintiff’s restaurant every day at one o’clock f. m. and remain there all day and all night, with the exception of one hour, which they allow themselves for dinner elsewhere. They neither eat nor drink in the plaintiff’s premises. They simply sit down there, avowedly for the purpose of detecting crime, but thus far, as they acknowledge, finding none.. They do this deliberately and ‘in defiance of the plaintiff’s urgent and repeated protests; and they do it under the defendant’s express orders. This the latter admits. He also admits that, when the plaintiff complained to, him upon the subject, he not only declined to withdraw his men, but declared with emphasis that, if it was necessary “ to continue ” — we quote from his answer — “ to have officers stationed in said premises until the sign 1 To Let ’ was placed upon the windows thereof, he would do so.” He now seeks to justify his conduct by saying that his purpose is to prevent gambling on the premises. And he furnishes evidence tending to show that, prior to the adoption of these measures, card playing was on two or three occasions discovered by some of his officers in a room back of the plaintiff’s restaurant. He also shows that upon such discovery he secured the arrest of the plaintiff and' others for gambling. It appears, however, without dispute, that these arrests proved unavailing, and that whenever they were.made, the accused persons were either, discharged by the police magistrate before whom they were brought or ultimately acquitted. Upon these facts the defendant expresses his belief that the plaintiff has kept a gambling house upon the premises in question; and he also says that complaints have been repeatedly made to him that the premises were being used for such unlawful purposes. With the exception, however, of the few, incidents to which reference has been made, there is no legal evidence to support these complaints or to warrant the defendant’s belief. The suggestion of the defendant’s counsel, that the plaintiff persistently and flagrantly uses these premises for a disorderly house, is not borne out by anything which appears upon the record. The picture which he presents of the plaintiff as a criminal who has the temerity to come into a court of equity asking it to help him to violate the law is drawn largely from suspicion and imagination and not from the actual facts established in the case. This overdrawn picture is in reality a perversion of these facts, the only effect of which is to divert attention from the real question presented and to prejudice its impartial consideration.

The real question, squarely presented, -is ' whether- the police department, in order to detect and punish crime, may lawfully station officers upon the premises of a citizen, and keep them there in anticipation of suspected criminal practices. This is the sole question presented by the actual .facts. In its consideration, and, indeed, throughout this discussion, it must be carefully borne in mind that the plaintiff is not seeking to enjoin a threatened arrest or to try in a court of equity the question whether certain acts constitute a crime. It is well settled that this may not be done. (Davis v. American Society, etc., 75 N. Y. 362; Kramer v. Police Department, 53 N. Y. Super. Ct. 492; Kenny v. Martin, 11 Misc. Rep. 651.) He makes no attempt to enjoin an arrest, brt merely to enjoin what he alleges to be illegal acts of an oppressive character. Hor does he seek to. restrain a police official from performing duties imposed upon him by law. Indeed, his sole object is to keep the official within his legal duties; that is, to prevent the defendant from going outside the lorn to oppress and injure him.

We may premise by stating that it is substantially conceded that a private citizen would have no right to remain continuously upon the premises of the plaintiff against his wishes.. It is not necessary to consider at length the question discussed by counsel as to the duties of a restaurant keeper toward the public, or wherein these duties differ from. those of an. innkeeper under the common law. It may, however, be said briefly that the keeper of a public restaurant is only bound to furnish food to such fit persons as apply. When such a person has had a reasonable time to finish his meal and make his preparations for departure, he has no right to remain upon the premises against the will of the proprietor. What greater right, then, has a police official ? Plainly none, save such as is expressly or derivatively conferred upon him by law. When such official invades a citizen’s house or shop, and there oversteps the boundaries to which a private individual is limited, the burden is upon him to point to statutory authority in justification of his action. There can be no presumption that the invasion of a man’s premises is legal. Apart from the statute, the only presumption is that a police officer possesses the powers of an ordinary peace officer at common law. .

What, then, is the defendant’s claim of authority in the case at bar ? The only statutory provision to which he points is section 282 of the Consolidation Act. That section makes it the duty, in general, of the police to prevent crime, and confers specific authority to “ observe and inspect” gambling houses and other public places. This authority to “ observe and ■ inspect ” was not intended to embrace anything approaching to permanent occupation. This is clearly indicated not only by the terms thus employed, but by the context, and especially by what follows. Thus, it is provided by section 285 of the same act that the superintendent of police, upon the report of two or more householders, giving good ground for a belief that any room or premises is being used as a common gaming house, common gaming room or common' gaming premises,” may authorize ah entry into them by members of the police force, “ who may forthwith arrest all persons there found offending against law, but none others.” This express permission to enter and a/rrest forthwith, hedged about as it is with safeguards, and applying only to common gaming rooms, is a forcible answer to the claim made here. There are other special provisions, such as section 514 of .the Code- of Criminal Procedure, permitting search at any time of the person or premises of one adjudged an habitual criminal, and also sections 1998, 2004 and 2018 of the Consolidation Act relating to attendance at theatrical exhibitions, which point strongly in the same direction. The doctrine, “ Expressio unius est exclusio alteriusf may fairly be held to apply. It is apparent, therefore, that the provisions of section 282 of the Consolidation Act, making it the duty of the police force to prevent crime, to detect and arrest" offenders, to carefully observe and inspect all places where business' is conducted under an excise or other license, all gambling houses and other evil resorts,1 and to repress and restrain all unlawful and disorderly conduct or practices therein, afford no warrant for any act in the nature of a permanent occupancy by the police of any such place or resort. The purpose of the statute is to afford the police authority to.repress and prevent crime by the specified means, viz., by promptly arresting, with or without warrant, any person or persons who, upon .an inspection of the enumerated premises, may be found there violating the law. Such is the plain import of the language used in the last sentence of this section 282.- This language is as follows: “ And for these purposes, with or without a warrant, to arrest all persons guilty of violating any law or ordinance for the-' suppression or punishment of crimes or offenses.” Even this latter provision, being in derogation of liberty, should be strictly construed. (Dillon Mun. Corp. [4th ed.] § 211, and cases there cited.) Plainly, then, the purpose of the statute is not to authorize police captains to fill all evil resorts with one or more paid public agents and require these agents to remain in such resorts as permaiient supervisólas of the morality or lawful conduct of their inmates and frequenters. It is fair to say that the respondent’s counsel hardly questions these principles. But he denies their applicability to the case at bar. What he says, in effect, is that a restaurant is a “ public place,” and thus comes within the category of ferries, railroad stations, theatres and public gatherings, at which police officers have always been stationed without question. The fallacy of this argument consists in likening these enumerated “ public" places ” to the plaintiff’s case. The latter’s restaurant is not in any'sense analogous to a ferry, railroad station, theatre or public meeting. The presence of policemen in these latter places is an ordinary and essential public duty, just as much as patrol duty upon the streets or parks. Hot so, however, in the case of a private business, where the only public element is a general appeal for support. Ferries and railroads, though the subject of private adventure and gain, are essentially designed for the public benefit. The public has a vital interest in the objects of such business. The localities where such business is conducted are at all times public, in the broad sense of the term. In the case of theatres and' public meetings, large numbers of people are brought together upon specified occasions and for limited periods of time. Then and there the police power is appropriately exercised to preserve order. But with this exercise the authority ceases. What right, for instance, would; a captain of police have to direct his men to remain in a public hall or theatre before and after the meeting or performance, to so remain day in and day out; in fact, permanently, and without regard, to the orderly regulation of the premises upon any particular occasion? We cannot but think that this “ public places ” argument is strained and unsound. Our conclusion, upon a careful review of the statute, is that the defendant has exceeded his authority, both in its terms and scope. The only remaining question, therefore, is whether he should be enjoined.

The rule is well settled that a' continuing trespass is remediable by injunction (Wheelock v. Noonan, 108 N. Y. 179; Carpenter v. Gwynn, 35 Barb. 395; 3 Pom. Eq. Juris. § 1357), and that an in junction may be had against public officers who violate private rights, where the wrong would ordinarily be redressable in equity. (People v. Canal Board, 55 N. Y. 390; People ex rel. Negus v. Dwyer, 90 id. 402.) As was said by Allen, j., in the former case: “ That public bodies and public officers may be restrained by injunction from proceeding in violation of law to the prejudice of the public or to the injury of individual rights, cannot be questioned.” (P. 393.) In the case .at bar the remedy at law is plainly inadequate. The plaintiff cannot well eject the defendant’s officers by force. Any attempt to do this would at once bring him in conflict with the entire police force' of the precinct under the defendant’s command. To remit the plaintiff to this remedy would be a mockery. Nor would an action at law afford him adequate redress. To secure anything like redress at law he would have to bring a fresh action each day, and that very consideration is one of the usual grounds upon which equity acts, viz., to prevent a multiplicity of suits. But in no one suit, nor, indeed, in a multiplicity of suits, could the plaintiff establish or secure his damages; and while he was resorting to these practically useless remedies his business would naturally diminish and be ultimately ruined. . The true and only substantial remedy, therefore, for such a continuing wrong as the present is by injuction.

Let us then briefly consider some of the technical objections which the respondent alleges against the granting of an .injunction fendente lite.

First, he claims that the material allegations of the plaintiff’s complaint are denied by his answer and the opposing affidavits. In this, however, he is in error. He confuses his Own affirmative allegations of new matter set up as a defense with the material allegations of the plaintiff’s complaint. It is proper at this point to inquire what are the material allegations of the complaint. Eliminating all irrelevant matter, they are, in substance, the plaintiff’s ownership of the restaurant business, and the defendant’s continuous trespasses to the injury of that business and to the prejudice of the plaintiff’s rights therein. The plaintiff’s ownership is not positively . denied. It is in the complaint positively alleged, while the denial is but on information and belief. There is not, in fact, a particle of legal evidence to gainsay the plaintiff’s ownership, and his allegation on that head is fully corroborated by another affiant. Then, too, the continuous trespasses under the defendant’s orders are expressly admitted. It would seem to follow that the real equities of the complaint are' substantially undenied. They are, in fact, either admitted or denied on mere information and belief, and so far as they are thus denied they are fully proved.

Second. Next, the maxim is invoked that one who seeks equity must come into court with clean hands. Here, again, the new matter affirmatively set up by the defendant is confused with the real equities of the complaint. The defendant seems to think that, unless a man is a good and worthy citizen, he can have no equity as against wrong and oppression. In our judgment the plaintiff’s good citizenship and general morality have nothing to do with the concrete point presented for consideration. His equities are not founded upon personal qualities or character, nor is he required, as a condition of obtaining equitable relief, to prove his innocence of the charges which induced the defendant to violate his rights. He must, it is true, come into a court of equity with clean hands; that is, with clean hands quoad the very cause of action alleged. ' If he does this he fulfills the maxim although in the abstract he may be persona non grata. In equity, as well as in law, all men are equal.

Lastly, it is claimed that an injunction pendente lite should not be granted, but that the plaintiff should first be remitted to a trial at Special Term. This would undoubtedly be a correct disposition of the plaintiff’s application if the essential facts were in dispute, but, as we have seen, they .are not. Even if the defendant’s affirmative proofs went much further than they do, still he should be kept within the bounds prescribed by law. We must again assert in this connection, and it cannot be asserted with too great emphasis, that the defendant cannot, under the authority to “ observe and inspect,” practically take possession of the plaintiff’s premises, or plant his officers permanently therein. If we are right in this view of the law, there is surely nothing in doubt which requires to be clarified by a formal trial. Every fact which is essential to raise the question of the plaintiff’s right to an injunction clearly appears in the present record. The question now before us, therefore, is distinctly one of legal right, the consideration of which we cannot properly postpone. To postpone consideration of such a question when it is thus squarely presented would be to make the court a passive ally of the wrongdoer. This view does not lessen our condemnation of the crime here sought to be prevented. Gambling is an undoubted evil, and all lawful means should be invoked and utilized for its suppression; but there is something more important: than even the prevention of" this evil, and that is the preservation ¡of the.fundamental principles upon which civil liberty rests., These principles should never be lost sight of even in the case of the humble, or even • of the criminally suspected, and"' certainly the doctrine . should be impressed upon public officers," of all people, that the righteous end does not justify the unlawful means: r

The order appealed from,, therefore, should be reversed, with ten dollars costs: and disbursements of the! appeal, and the motion for an injunction granted, with ten dollars costs. .

Yak Brunt, P. J., concurred!., i

Order affirmed, with costs.

Note.—The rest of the cases of' this term, will he found in the' next volume, 24 App. Div.— [Rep.

Case Details

Case Name: Weiss v. Herlihy

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Dec 15, 1897

Citation: 49 N.Y.S. 81

Court Abbreviation: N.Y. App. Div.