
    Bertha Levy, Appellant, v. Theodore A. Bingham, Individually and as Police Commissioner of the City of New York, and Others, Respondents.
    Second Department,
    June 8, 1906.
    Equity—when ’ injunction to restrain police from molesting keeper of , restaurant' will issue.
    An injunction will issue to restrain the police authorities from stationing officers in a restaurant where a lawful business is conducted when the surveillance is based solely upon a suspicion that gambling .is being carried on and the answering affidavits fail to show the slightest ground upon,.which to found such suspicion.
    Appeal by the- plain,tiff, Bertha Levy,, from an- order of" the Supreme Court, made at the Kings, County Special Term, béaring . date the 3d -day of March, 19G6, and entered in the office of the clerk of the county of Kings,- vacating a temporary injunction . theretofore, granted in- th.e action restraining the defendants from entering the premises of the plaintiff without a warrant or other legal process.
    
      S. S. Myers [J. Charles Weschler with him on the brief], for the appellant.
    
      James D. Bell [James W. Covert and John J. Delany with him on the brief], for the respondents.
   Hirschberg, P. J.:

The plaintiff conducts a restaurant business' at No. 51 East Tenth -street, in the borough of Manhattan, occupying the first floor and. basement.- She has no.liquor'tax certificate, and .there is no -evi- ' dence that liquor is sold on the premises-or has-been since.January 5,. 1906, about one month .prior to the commencement of the action. There is ño bar on the place; no form of gambling is carried on, and no poolroom is connected with the premises.. The ,

, restaurant is chiqfly patronized by women employed in the various business establishments in the vicinity, including the well-known department store of Wanamaker. For a period of about fourteen months officers of the police department of, the city of New York, in plain clothes and in uniform, have been stationed in the restaurant almost daily, remaining occasionally for hours, obviously with a view of discovering some infraction of the law, and confessedly without success. There has been no arrest made upon the premises, and the record discloses no instance of misconduct or impropriety on the part of either the plaintiff or her customers.

The action is in equity against the police commissioner of the city and his offending subordinates, for the purpose of procuring a judgment enjoining them from entering the plaintiff’s premises without a warrant or other process of law, and the appeal is from an order vacating a temporary injunction on the return of an order to show cause in which it was contained.

No fact justifying the trespass on the plaintiff’s premises by the defendants is set forth in the answering affidavits. It is alleged that the premises are carried on the books of the police department as a “suspicions place” where poolselling was “supposed” fo be conducted ; and the defendant police .captain asserts that his acts and those of the men under his command in the invasion were inspired .by the Iona fide belief, created by information received from “ police channels,” that gambling was going on. It seems to me that the. utter failure of the defendants to find a single incriminating fact in the long period of investigation is of controlling significance. The utmost that can be said of the defendants’ case as presented on the motion is that they harbor unfounded suspicions,, and surely, under any reasonable system of espionage, the time has long elapsed when suspicion and denunciation should he required to merge into proof. . -

The order is in conflict with the decision of this court in the case of Hale v. Burns (101 App. Div. 101): In. that case the plaintiff had a liquor tax certificate and was conducting a saloon, but it was nevertheless held that in the absence of proof of violations of law, or of circumstances tending towards such proof, the police authorities could be restrained from a continuing trespass on the property.

The recent decision of the Court of Appeals in Delaney v. Flood (183 N. Y. 323) is relied on by the respondents as establishing a contrary doctrine. I do not so understand it. In that case.the officers were stationed outside of a place having a liquor tax certificate., and the decision was based upon the principle that equity will not interfere to prevent the enforcement of the criminal laj/v. That principle has no application to this case.. Off the contrary, the court said in that case (p. 326) : “ The pivotal point around which this question revolves is, that the plaintiff is engaged in the sede of intoxicating liquors. That is a'business which, when uncontrolled and unregulated by law, is fraught with grave dangers to the public peace, health, morals and safety; and even when regulated by. statute, as far as it may (be,'it is productive of much idleness, pauperism, disorder and crime. In order to prevent and to minimize these evils, as far as pbssible," it has been deemejd necessary for the welfare of society that the business of' liquor selling should be hedged about by conditions and restraints from which other callings may be safely exempted.” Prior to January 5, 1906, the plaintiff’s premises had a liquor tax certificate, but the defendants make no claim to even a suspicion that liquor has been sold there since. In short, the defendants rest solely upon “ suspicion ” that poolselling or some other form of gambling is carried on at the plaintiff’s premises, without the slightest ground upon which to found such suspicion,: and which suspicion their persistent efforts to verify, without success, might well have dissipated long ago.

The views herein expressed are in general accord with the recent decisions of the Appellate Division in the first department in McGorie v. McAdoo (113 App. Div. 271) and Burns v. McAdoo (Id. 165). In the case of Stevens v. McAdoo (112 App. Div. 458), wherein 'an injunction was denied, 1 assume from the statement in the opinion of Mr. Justice Ingraham that sufficient facts were presented to justify the belief of the police authorities that the premises there in question weré being used for unlawful purposes. This case is barren of such facts; it is undisputed that the plaintiff’s business is seriously threatened; no adequate remedy at law appears ; the papers present no conflict of fact to be determined ppon affidavit, and a proper case for equitable relief is made out.

The order should be reversed and the injunction restored and continued.

Woodward, Jenks, Hooker and Miller, JJ„, concurred.

Order vacating temporary injunction reversed, with ten dollars costs and disbursements, and injunction restored and continued.  