
    Superior Court of the City of New York.
    
      July, 1886.
    KRAMER v. THE BOARD OF POLICE OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK.
    Police Department—Injunction Against Arrests by, for Claimed Violation of Law.
    An action in equity will no 5 lie to determine the question of the guilt or innocence of one charged with an offense against the criminal law.
    This doctrine applied to a case where, from the complaint in an action for an injunction, it appeared that the acts sought to be restrained consisted in the arrest by the police department of persons claimed by it to be engaged in the selling of wines, etc., in the auditorium or lobbies of places where theatrical, etc., performances are given, contrary to section 2010, chapter 410, Laws of 1882.
    Appeal by defendant from order granting injunction.
    The defendants were sued as a “ body duly created by law specially charged with enforcing the laws of this State and preserving the peace of the city,” and the complaint alleged that the defendant by its servants and policemen have threatened to arrest the plaintiff and all his employees, and to interfere with plaintiff’s business and prevent him from carrying on the same at his place of business in the city of New York, claiming that the plaintiff violates the law, and further alleging “ that plaintiff violates no law whatever, and unless the defendants are enjoined from interfering with plaintiff’s business and making the threatened arrest, the injury the plaintiff will sustain will be irreparable which cannot be estimated or ascertained in an action at lawand the complaint demanded judgment; “that the defendants, its superintendent, inspectors, captains, sergeants, roundsmen, patrolmen, etc., be enjoined and restrained from arresting or taking into custody any person engaged upon the premises of the plaintiff in the transaction of the business of the plaintiff, and from interfering with or hindering any such persons in the transaction of said business, and from in any manner proceeding against such persons by arrest or otherwise, in the conduct of said business on plaintiff’s premises, and from in any manner interfering with or hindering plaintiff or such person or persons authorized in carrying on the business as aforesaid.”
    On this complaint and the affidavit of the plaintiff, which it it was claimed tended to show that the business carried on at the premises described in the complaint was not in violation of law, and that he and his servants were not guilty of the crime charged, an order was entered which provided, “ that the said defendants and all persons acting under defendant’s authority or by its' direction, desist and refrain until the final determination of this action, from arresting or taking into custody any persons engaged upon the premises of the plaintiff in the transaction of any business with the plaintiff, and from interfering with or hindering any such person in the transaction of said business, and from in any manner proceeding against any such person by arrest, or otherwise, in the conduct of said business upon the plaintiff’s premises, and from in any other way interfering with or hindering plaintiff or such person or persons as may be authorized by him in carrying on his business as aforesaid.”
    
      E. Henry Lacombe, counsel to the corporation, and Francis M. Scott and D. J. Dean, for appellant.
    It seems to be well settled that an injunction will not lie to restrain an arrest under circumstances such as are disclosed by the papers in this case. Birch v. Cavanagh, 12 Abb. Pr. (N. S.) 415; Murphy v. Board of Police, 11 Id. 357; Finck v. Police Comm’rs, 66 How. Pr. 318; Davis v. The American Society, &c. 75 N. Y. 362.
    
      Howe & Hummel, for respondent.
   Ingraham, J. (after stating the facts as above).

By section 250 of chapter 410 of the Laws of 1882, known as the Consolidation Act, it is provided that the government and discipline of the police departments of the city of New York shall be shell as the board of police may from time to time, by rules and regulations prescribe, and by section 277 of the said act, “The several members of the-police force shall have power and authority to immediately arrest without warrant, and to take into custody, any person who shall commit, or threaten, or attempt to commit, in the presence of such member, or within his view, any breach of the peace, or offense directly prohibited by act of the legislature, or by any ordinance of the city. The members of the police force shall possess in the city of New York, and in every part of this State, all the common law statutory powers of constables. ...”

By section 2010 of the said act it is provided: “It shall not be lawful to sell or furnish any wine, beer or strong of spirituous liquors to any person in the auditorium or lobbies of any place of exhibition or performance mentioned in section 1998, or in any apartment connected therewith by any door, window or other aperture;” and by section 2012 it is provided that any person violating any of the provisions of section 2010 shall be deemed guilty of a misdemeanor.

The selling of furnishing of any wine, beer or liquor in the auditorium or lobby of a place of exhibition or performance ■having been made a misdemeanor, it became the duty of the •members of the police force to arrest the plaintiff if he sold or furnished wine or liquor in the place prohibited by the statute, and the ground upon which the plaintiff requested the court below to grant the injunction was that the act of the plaintiff ■and his servants were not in violation of the section referred to; or, in other words, that they were not guilty of the. misdemeanor for which the police threatened arrest. This was the. -only question discussed in the opinion below and in the briefs submitted by counsel for respondent on this appeal.

The court below held that the plaintiff was not guilty of the crime, thus trying in a court of equity the guilt or innocence of a person accused of a crime on affidavit. There was no charge in the complaint that the police had threatened to make the arrest without a warrant or the authority required by law. The allegations are that plaintiff was accused of a crime; that the police threatened to arrest him for committing such crime; that he was innocent of the crime charged, and did not want to be arrested because it would injure his business; and whether or not a court of equity has jurisdiction to determine such a question in this action is presented.

It is clear that the assumption of such jurisdiction by a court .of equity would entirely subvert the method provided by law for the trial of criminal cases. If such jurisdiction should be upheld, every person accused of crime would have the right to apply to the court for an injunction restraining his arrest, and the court would be bound to entertain the application and to try the question of his guilt or innocence upon affidavits. Upon no principle could the jurisdiction be restrained to a particular class of crimes, and a person charged with the crime of murder would be as much entitled to the remedy as a person charged with a violation of the section of the statute referred to.

The tendency has been to greatly extend the remedy by injunction in civil fiases, but certainly such remedy should be limited to civil cases, and criminal cases left to be disposed of in the criminal courts. .

The question was presented to the Court of Appeals in the case of Davis v. The American Society, &c. (75 N. Y. 368), where, as in this case, the plaintiff claimed that his acts were not in violation of the statute under which the officers of the ■defendant claimed the right to arrest, and it was there held that the action was absolutely without sanction in precedent or principles of equity. The court say: “ The only question for contestation was whether, as matter of fact, they were guilty or innocent of such violation, and the determination of that question could not by such an action as this be drawn to a coupt of equity. Whether a person accused of a crime, be guilty or innocent, is to be determined in a common law court by a jury, and the people as well as the accused have the right to have it thus determined.”

But the order granted in this case went further than to restrain the arrest of the plaintiff and his employees. The defendants are enjoined from arresting or taking into custody any person engaged upon the premises of the plaintiff in the transaction of any business with the plaintiff, and from in any manner proceeding against any such person by arrest, or otherwise, in the conduct of said business upon plaintiff’s premises.”

Such an injunction would give any person engaged upon the-premises of the plaintiff in the transaction of any business immunity from arrest for any crime, and practically nullify the statute which gives to the members of the police force power and authority to arrest and take into custody any person who' shall commit or threaten or attempt to commit in the presence of such officer any offense prohibited by law.

We do not decide whether or not the acts of the plaintiff were in violation of section 2010 of the Consolidation Act, but we are of the opinion that such questions cannot be determined by this court in this action.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and motion for injunction denied, with ten dollars costs.

TrüAX, J., concurred.  