
    Joseph Cohen, Plaintiff, v. The Department of Health of the City of New York, and the City of New York, Defendants.
    (Supreme Court, Kings Special Term,
    November, 1908.)
    Injunction — Who and what may be enjoined — Acts of public and municipal corporations and officers thereof — Enjoining health officers.
    The court will -not enjoin the department of health of the city of New York from enforcing the provisions of the sanitary code embodied in the Greater New York Charter, though the plaintiff has incurred, large expense in adapting his property to a business which contravenes such provisions.
    Motion for a temporary injunction.
    Gates Hamburger, for motion.
    Francis K. Pendleton, Corporation Counsel (Patrick Callahan, of counsel), opposed.
   Stapleton, J.

The plaintiff moves for a temporary injunction, restraining the defendants from interfering with the plaintiff in keeping, selling, slaughtering, storing and otherwise disposing of poultry at Ho. 614 Flushing avenue, in the borough of Brooklyn.

He alleges in his complaint that he made an application to the defendant board of health for a permit to keep, sell and slaughter live poultry on the premises; that the application was denied without notice and without giving him any hearing; that he complied with all the rules and regulations prescribed by the board of health; that he spent large sums of money fitting- up his premises for the purpose of keeping, selling and slaughtering live poultry; that the defendant intended to institute civil and criminal actions against him, for the purpose of preventing him from carrying on the business for which he sought the permit. These are all the material allegations in his complaint.

The acts sought to be enjoined are the prosecution of civil and criminal proceedings. The defendants present no answer to the complaint and submit no affidavits upon this motion. The plaintiff does not prove that section of the sanitary code under which the defendants have the right to grant or control the permit. Ordinarily, the court could not take judicial notice of it. The sanitary code of the city of New York, however, was ratified and confirmed by the Legislature, by chapter 135 of the Laws of 1880. Laws of 1882, chap. 410, § 575; Greater N. Y. Charter, Laws of 1897, chap. 378, § 1172, as amended by Laws of 1901, chap. 466.

Section 79 of the sanitary code, by statute adopted and declared to be 'binding and in force, except as the same may, from time to time, be revised, altered, amended or annulled, as provided in the Greater Hew York charter, is as follows : “ That no live chickens, geese, ducks, or other fowls shall be brought into or kept or held or offered for sale, or killed in any yard, area, cellar, coop, building, premises or part thereof, or in any public market, or on any sidewalk, or other place within the built up portion of the City of Hew York, without a special permit, in writing, from the Department of Health and subject to the condition thereof.”

The burden of showing a change in its provisions after its adoption by the Legislature is, therefore, upon the plaintiff. Any violation of the sanitary code is a misdemeanor, and pecuniary penalties for violation of its provisions may be provided for and recovered by the department of health in a civil action. Greater N. Y. Charter, § 1172; People v. Davis, 78 App. Div. 571.

The motion of the plaintiff, therefore, is an appeal to a court of equity to restrain public officers from the enforcement of the criminal law. This appeal equity will not heed. Delaney v. Flood, 183 N. Y. 323.

The Court of Appeals in the case of Metropolitan Board of Health v. Heister, 37 N. Y. 661, 664, 672, reversed a judgment granting an injunction preventing the board enforcing an order forbidding slaughtering cattle in a densely populated part of the city.

This is not an application for an order enjoining the abatement of a nuisance involving the destruction of or injury to private property when a nuisance in fact and in law does not exist.

If the action of the board of health in refusing the plaintiff a permit was arbitrary, tyrannical or unreasonable, he may have a remedy by an alternative writ of mandamus, People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 194, 196.

Motion for a temporary injunction must be denied.

Motion denied.  