
    George L. Burns, Respondent, v. William McAdoo, Individually and as Police Commissioner of the City of New York, and Bernard Gallagher, Individually and as Police Captain of the Twenty-second Precinct, Police Department of the City of New York, Appellants.
    First Department,
    May 11, 1906.
    Equity will enjoin trespass by police officers calculated to ruin a lawful business when no justification therefor is shown — facts which warrant temporary injunction.
    Equity will not interfere to prevent arrests or the execution and enforcement of the criminal law so long as the police authorities keep within the lines of duty; nor will it on conflicting evidence determine whether or not a crime has been committed, or whether a business is unlawful.
    -But when the courts are appealed to by a law-abiding citizen, conducting a lawful business which is injured by the police, who persist in remaining indefinitely on the premises and show no justification therefor, equity will issue an injunction in order to protect the individual rights guaranteed by the Constitution, and in the interests of law and order.
    When it is shown by the proprietor of a physical culture school that police officers trespass upon his premises and threaten his patrons under a charge that the place is used for gambling, to the ruin of liis business, etc., and th,e police authorities show no justification for such action save that before the plaintiff’s , occupancy the place was used for gambling, equity will entertain an action to restrain the trespass and will issue a temporary injunction.
    ■ When, however, the plaintiff only occupies the second floor of the building, an , injunction which restrains the police from maintaining officers in the halls and ■ doorways leading to the building is too broad.
    Ingraham and Clarke, JJ., dissented, with opinions.
    Appeal by the defendants, William McAdoo, individually and as police commissioner of the city of Mew York, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of July, 1905, enjoining each of said defendants, both' individually and in Ms official capacity as a member of the police department of the city of Mew York, and the officers under the command of each of them “ from maintaining and stationing policemen or police officers within the premises leased and occupied by the plaintiff herein, at Mo. 1626 Broadway, in the Borough of Manhattan, City of Mew York, and also from keeping, stationing and maintaining within, the said premises, and in the halls and in the doorways leading thereto, any of the officers under the command of either of said defendants, against the will of this plaintiff, or otherwise to unlawfully, oppress this plaintiff and persons in his employ, and customers and persons desiring to do business with this plaintiff, and persons lawfully entering.upon said premises' leased and occupied by the plaintiff herein, or from, unlawfully trespassing upon said premises.”
    
      Terence Farley, for the appellants.
    
      Maurice Meyer, for the respondent.
   Laughlin, J.:

This is a suit in equity to enjoin acts of trespass and oppression by members of the police force.

The plaintiff alleges and show's by affidavit that he is engaged- in business as a teacher and instructor of a physical cultux-e school at No. 1626 Broadway, in the city of New -York, borough of Manhattan ; that said preini'ses are situated iix the Twenty-second precinct, of which the defendant Bernard Gallagher is captain ; that the ground floor is occupied by a carriage manufacturer, and that the . plaintiff is the sole lessee of -the entire sécond floor of said premises, about twenty-five feet in width by sixty feet in' depth ; that he has occupied 'said premises during the five 'months preceding the commencement of the,action, and has employed as .superintendent and manager of said business one Professor William J. Lee, who is well known throughout the city of New Ytirk and other places as being an eminent specialist in the line of physical culture that he has on the outside of said premises signs announcing liis business “ and in ■ the studio, which occupies the whole floor leased by deponent, is contained.various paraphernalia- for giving lessons in exercise in calisthenics and athletic movements; ” that before he' leased the premises' he was engaged with the Equitable Life Assurance ¡Society/ and that prior thereto he was a traveling salesman for a mercantile house in New York citythat shortly after June 25,1905, gn officer named Lolnneyer, attached to defendant Gallagher’s command, called at his place- and asked him and Professor Lee and one . other person present \yflat they were doing there and asked Lee if lie had' a diploma to practice physical culture, and “ told us all, after some further little conversation, to get out of said premises, as the Police Department had been notified that gambling'was going on in said premises; that Police Officer Lohmeyer and others have called there continuously since last-mentioned occasion and have stationed themselves in the doorways and hallways and at the entrance to deponent’s premises, and on the premises occupied by deponent such police officers, including Officer Lohmeyer, have at various times ordered all the persons on said premises to get out, ' and deponent has. at various times seen Officer Lohmeyer and other officers connected with the command of the defendant Gallagher speak to persons desiring to . enter plaintiffs premises, and inquire of them their business, and what was going on on said premises;” that daily since said occasion the defendant Gallagher has malí-, ciously, oppressively, unlawfully and wrongfully stationed and kept within plaintiffs place of business a number of officers under his command, and that the plaintiff has repeatedly asked said officers to depart if they had no other business .there than to watch occurrences on plaintiff’s premises, and has asked them that if they saw any violations of law to make an arrest and depart, and that the officers stated and asserted that they were on the premises on orders from Gallagher for the purpose of watching and seeing that no gambling took, place and for no other reason; that customarily during said period the officers arrived at plaintiff’s place about two p. >r. each day except Sunday and rérnained until nix p. m. ; that “ some of the officers stand in the hallways of the said premises and at other times station themselves on the ground floor at the door leading into said hallway, and also upon the landing at the head of the stairs upon said premises occupied by the plaintiff, and have also occupied the chairs of the plaintiff in his said place of business and endeavored to interfere with plaintiff’s customers, * * and at different times attempted to eject some of plaintiff’s customers^ from his said premises ; ” that the officers have threatened persons entering the premises with arrest, and have stated to them that if they entered there they- would arrest them for being in a gambling house or poolroom; that on or about July 1 and July-3,1905, the officers came to his premises when Professor Lee, one Thomas Lee', an attendant.for plaintiff, and one Dickson, a customer, were present; that the officers talked in a loiid tone of voice in the presence of other customers as to what‘was going on there, and that they said they were there to see if any gambling was taking place, and that at said time they attempted to eject the said Dickson from the premises ; that the said defendant Gallagher was acting under the instruct tions of the defendant McAdoo ; that plaintiff has notified Gallagher of all the facts stated herein, and despite his repeated requests to Gallagher to remove the officers from the premises, Gallagher refused, and asserted that he would continue.to keep them there to cause plaintiff annoyance and to endeavor to restrain him from doing business, and refuses to set any limit as to the time he will keep the officers there; that the premises have never been used as a poolroom or for gambling by plaintiff, nor has he permitted them to be used as such by any. of his employees or customers; that plaintiff lias distributed at various times since occupying the premises for the purpose of advertising his business circulars containing the following

“ Physical Culture Studio,
“ No. 1626 Broadway, New York.
“ I have arranged with the eminent Professor W. J. Lee to take charge of my private studio, and respectfully solicit your patronage.
'“For terms and further particulars kindly address me as above, or at No. 69 Stuyvesant Avenue, Brooklyn, N. Y.; also Professor Lee at aboVe address. G. L. BURNS.”

The plaintiff also presents an affidavit of Professor Lee to the effect that he has been teaching aiid demonstrating physical culture for the past ten years, and has been employed by the plaintiff for the last five months ; that he is an .author and lecturer on physical culture, has been associated with the editor and proprietor -of the Physical Culture Publishing Company, whose offices are at 29 East Nineteenth street, for three years, and that he wrote an article for the New York Herald,, a copy of which he makes a part of his affidavit, and which article purports to illustrate his art. The article in question appeared July 26, 19Q3, and has fiye photographs of Professor Lee taken at different times to show his success in reducing weight by his physical culture methods. The affidavit of Professor Lee further shows, that he has known the plaintiff for five years, and is “at the present time engaged with him as manager and conducts the business for Imn at No. 1626 Broadway ; ” that he arrives at the place at ten a. m. and remains there until ten p. m., with the exception of the time he spends in .securing his meals. He also corroborates plaintiff in regard to the acts of the officers upon the premises generally and particularly as regards the incidents of July first and July third, when plaintiff claims that the officers attempted to eject his customer Dickson from the premises. He further states that Officer Lohmeyer repeatedly called at the premises prior to July 1, 1905; that he came into the office of the plaintiff and sat down and stated that he was going to sit there; that deponent on three or four occasions asked him to leave, whereupon he did leave, but that another officer came and took his place on said premises; that when Lohmeyer and the other officers first came to the premises they said that “ a letter had been Written to the Captain, meaning the defendant Gallagher, which had been unsigned, stating that there was going to be an alleged poolroom conducted on said premises and that the Police Department suspected that such was the purpose of plaintiff’s establishment.” The affidavit of Thomas Lee, the alleged attendant of the plaintiff, substantiates the plaintiff generally as to the acts of the officers and shows that he “ has heard Officer Lohmeyer order all persons out of said premises and seen him interfere with a customer or patron of plaintiff known as Mr. William D. Dickson; ” that at different times when deponent was entering the premises he was asked his business by the officers and was followed upstairs into plaintiff’s premises by them; that he has been employed as an attendant at various gymnasiums and schools for physical culture in New York city. Both he and Professor Lee make statements in their affidavits tending to show that there was no gambling of any kind on said premises. Professor Lee says, “ that at no time while deponent lias been on said premises, has there been any gambling of any kind, nature or description conducted by the plaintiff herein thereon, nor is there on said premises any apparatus or paraphernalia for the conducting of a pool room or any other gambling device.” Thomas Lee says that át no time has he “ ever seen atiy gambling of any kind, nature or description on said premises, and at no time has* permitted the said premises to be used for any such purpose by any persons whatsoever.” He" liad been employed by the plaintiff for five months. ‘

The plaintiff also presented an affidavit by the said Dickson to the effect that some time early in June of 1905, he received a copy of the circular which plaintiff claims to have sent out to advertise his'bnsiness; that in answer to it, he, on July 1, and again on 'July 3, 1905, called at plaintiff’s place of business tó see about making arrangements for a course of instruction. When he arrived there on July first, there were certain men there who stated they Avere police officers and avIio asked him Avhat he wanted ; that when he told them that he wanted to see the plaintiff and Professor Lee, they ordered him out of said premises;. that Lee at that time stated "to the officers the purpose,and object of his, Dickson’s, visit, and that the officers in Return said it made no difference, and “ told ns all to get out, and ejected us from said premises ;” deponent returned again on July third and Avas treated in a similar manner by police officers who were on the premises at that time; that deponent never saw any gambling of any Lind-on said premises, and had no idea.that they Avere used for any such purpose. •

Opposed to this evidence the defendants read in opposition to the motion three short affidavits. Frederick Lohmover, the officer referred to, said that the records show — but does not specify what records — that at one time the building at 1626 Broadway Avas used as a poolroom and that it is carried on the books of the precinct as a suspicious place. He admits of having himself visited the premises, but denies that officers were stationed at the premises to warn people either going in or coming out from the premises; “ that the said premises are fitted up to some- extent as a gymnasium, but that deponent on his visits has not seen.any other evidence of its being a physical culture institute, and that on several occasions persons on the premises have failed to give any satisfactory reason for their being around the- place.” The affidavits of Captain Gallagher and Acting Commissioner Thomas F. McAvoy merely show that they have given no spécific instructions to the officers in regard to inspecting this place." In an answering affidavit the plaintiff "showed that officers linder the coinmánd of the defendant Gallagher have, since the order to-show cause was obtained, visited the premises and have remained there on some occasions for three hours at a time, and that they have to deponent’s knowledge repeatedly interfered and accosted persons and patrons of deponent.

Although the moving papers are not as full and complete as they should have been, and as it would seem they might have been* yet they show that the plaintiff was lawfully in possession of the premises in question and conducting a lawful business thereon which required no license or permit, and which he was entitled to conduct without the in'spection and supervision of the police. The defendants show no justification for the unlawful trespass upon the plaintiff’s rights and premises. They merely show that some records — the nature of which they do not disclose,.but which we may assume were police records — show that these premises were at one time used for poolroom purposes, but they do not show as a matter of fact that they were ever used for such purposes, or that the plaintiff or any of his employees or customers ever visited the same 'at any time when, if ever, any unlawful-business was conducted thereon.

Mo reasonable ground is shown to justify even a suspicion that the plaintiff is conducting an illegal business., It is manifest that there is no adequate remedy at law for the- ruination of a lawful business by such means and methods as appear to have been employed by the police in this case. Unless a court of equity has and_ exercises jurisdiction to. enjoin an unlawful trespass of this nature by the police, it is within their power to levy tribute upon every lawful business and even upon citizens at their private homes; and if demands for tribute are not acceded to, it is within their power to ruin any lawful business and to destroy the good character and reputations of any citizen or resident of the city and his'family.

If the courts are powírless to afford adequate redress "for such acts of oppression and violations of individual rights guaranteed by the Constitution, citizens and others entitled by treaty to the rights of citizens will be driven to take the law in their own hands, and if unable to defend their possessions against unlawful trespasses by the police, they may -resort to th.e use- of firearms and other means. It is, therefore, in my opinion, upon grounds of public policy and in the interests of law and order as well as for the protection of sacred individual rights guaranteed by the Constitution, for which-there is no other adequate remedy, advisable that in a proper case an injunction should issue to enjoin a malicious or unlawful trespass by, police officers wliich they threaten to continué. Of course,, the courts may not and will not interfere to prevent arrests or the. execution and enforcement of the criminal law; and so .long' as the police authorities, keep within their proper sphei-es and lines of duty, they cannot be and will.not be embarrassed by the courts; . It is only in those cases where the police officers are acting'without authority • and are either ignorantly, willfully or maliciously committing or threatening, to commit illegal acts against the rights of a citizen to bis . irreparable damage, for which there.is no other adequate remedy, that an injunction should ever be issued. When, however, the courts are appealed to by a lawabiding citizen, or one entitled to the rights of ■ a citizen conducting a lawful business which is invaded by the police' Who- persist in remaining indefinitely, and show no justification therefor,- as in this case, an injunction may safely be issued, and ' there is little danger that the precedent, will render it difficult, for the police officers to enforce the law and to perform their full duties' - under the law. A court of equity should -not undertake to. determine upon conflicting: evidence whether or not a, crime" has been committed or a business is unlawful; but; I see no impropriety in enjoining ah unlawful trespass by the police, which is threatened to be continuous in its nature and will do irreparable damage, where the evidence is undisputed that the law is not being violated and no . unlawful business is being. conducted on the premises. This is a well-settled ground of .equity" jurisdiction as to trespasses of indi-i viduáls, and when, the trespass by. police officers is clearly unlawful and will produce irreparable damage, I see no good reason why it should riot be exercised as to them.

The case of Delaney v. Flood (183 N. Y. 323) is cited and relied upon by tlie; appellant as holding that equity is without jurisdiction to issue an in junction against police officers. I agree with the, comments upon that decision by Presiding Justice O’Brien in Stevens v. McAdoo (112 App. Div, 458), and by Mr. Justice Patterson in McGorie v. McAdoo (113 App. Div. 271); and as it is clearly, distinguished by them it is unnecessary that the grounds of distinguishment should be restated.

The order granted in this case is, however, too broad, It en joins-the defendants from stationing and maintaining- police-officers in the halls and doorways leading to the premises occupied by,the plaintiff. It does not appear that the plaintiff had any rights with respect to the halls or doorways other than those on the second floor, except for access by himself and customers; and it does not appear but that the defendants were permitted by those having jurisdiction over the halls and doorways to station officers therein. The injunction order should, therefore, be modified by striking from the enjoining clause thereof the words “ and in the halls and in the doorways leading thereto,” and as thus modified, it should' be affirmed, without costs.

O’Brien, P. J., and Patterson, J., concurred; Ingraham and Clarke, JJ., dissented.

Ingraham, J. (dissenting):

The relief' demanded in this case is for a perpetual injunction “ enjoining and restraining the defendants, the -officers under their and each of their commands and their and each of their agents and servants, from maintaining such alleged post within the plaintiff’s place of business and upon the plaintiff’s premises, to wit, Ho. 1626 Broadway, in the borough of Manhattan, city of Hew York, and also from keeping,'stationing and maintaining within the plaintiff’s said place of business and upon the said premises any of his officers, under their and each of their commands, against plaintiff’s will, or to otherwise continue to oppress, harass' and annoy this plaintiff, and trespass upon the said premises occupied by him; ” and to recover the sum of $1,000 damages.

Upon this complaint, an injunction during the pendency of the action was granted, after notice to the defendants, by which the defendants and eacli of them, individually, and as police commissioner of the city of Hew York, and - as captain of the Twenty-second police precinct, in the police department of the city of Hew York, respectively, the officers under the command of each of said' defendants, their and each of their agents, servants and employees, “ are enjoined and restrained from maintaining and stationing policemen or police officers within the' premises leased and occupied by the plaintiff herein, at Ho. 1626 Broadway, in the Borough of Manhattan, City of Hew York, and also from keeping, stationing and maintaining within the said premises, and in th^ halls and in the doorways leading thereto, any of the officers under the command of either of said, defendants,' against the will of this, plaintiff, , or-otherwise to unlawfully- oppress this plaintiff, and persons in liis employ, .and customers and persons desiring to do business with tiiis plaintiff, and persons lawfully entering upon said premises léased and occupied by tlie plaintiff herein, of from unlawfully trespassing upon said premises.” - ' .

Temporary injunctions are regulated by the Code bf Civil Procedure, and to justify a temporary injunction in this case, it must appear fro in the complaint that the plaintiff “ demands and is-en titled to a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury,to the plaintiff.” (Code Civ. Proc. § 603.) To justify the court’s granting’ a temporary injunction, therefore, it must appear from the complaint that' the . plaintiff would be entitled to a judgment permanently enjoining the defendants from doing, the acts complained- of. The defendants are police officers, charged with the duty of enforcing the law, preventing the commission of crime and arresting those who have violated tlie Jaw. .In the case of Stevens v. McAdoo (112 App. Div. 458) I stated the reason why, in my opinion, a court of equity has no. jurisdiction to grant an injunction, and merely wish to state additional considerations in support of the view there expressed. The plaintiff alleges that he has not committed a crime and that the business which he conducts upon the premises described in the ' complaint .is lawful. Based upon-that allegation lie asks that the police be restrained from visiting his premises or interfering with his customers. ( The plaintiff’s, right to relief is, therefore, based Upon the allegation that tlie business which he-conducts is a lawful business and that lié has not committed a crime. He furnishes n,o assurance that the place will not in the .future be used for criminal purposes,-and if he obtains the permanent injunction asked for, lie-will be at. liberty to conduct any business on ■ these premises free from police interference. Is this a question of equitable- cognizance? The police are further enjoined from unlawfully oppressing the plaintiff and- "persons lawfully entering the premises leased atíd occupied by the’ plaintiff, of from unlawfully trespassing upon said-premisés. It does not appear who are to determine whát is ‘^lawful oppression ” and what is “unlawful oppression,-” of what is lawful or unlawful' trespass. The court is authorized to enjoin the commission Or continuance, of an act by the defendants. If. is, I think, for the court to determine what acts are unlawful, and then restrain the defendants, from doing the Unlawful acts; The whole foundation for the claim that a court of equity should interfere is necessarily based upon.the statement of the plaintiff that"he is innocent of any criminal act, and that the business which he carries oil is not prohibited by law, and on that allegation the police officers are restrained from interfering with him in the conduct of this business or otherwise unlawfully oppressing the plaintiff and persons in his employ, and customers and persons desiring to do business with the plaintiff. The question is whether this is a case of equitable cognizance, and that was. the precise question presented to the Court of Appeals in Davis v. American Society, etc. (75 N. Y. 362), Iii that case the president of the defendant went to the plaintiffs’ place of 'business and announced to their employees that they must discontinue slaughtering hogs by the methods then used, and thereupon arrested one of the plaintiffs and one of their employees.for alleged cruelty to animals, and threatened that he would return in one week,

, and if he then found the plaintiffs or others carrying on said business in the same way, he would arrest all persons engaged in it and stop the business as often as he found the plaintiffs conducting it in that way. Upon tlíe trial the plaintiffs gave positive evidence tending to show that they did not practice' cruelty upon the hogs slaughtered, and that they would be damaged . by the interference of the defendant ;• but the court there expressly held that the case •made by the pleadings and proof was not one of equitable cognizance. The court refused to determine whether .the plaintiffs, were, as matter of fact, guilty .of violating the law, but determined the question solely upon the ground that in such a case it was not one of equitable cognizance.-

The plaintiff claims in this case that the police officers were guilty of a trespass upon his property. But, if so, he has his remedy by an action for damages against all of those who are guilty of or responsible for the trespass, and the plaintiff in the complaint asks for damages for what is claimed to be an illegal and unlawful trespass. Where the acts complained of are committed by a police officer engagéd in the performance of. his duty in the suppression of crime, equity has no jurisdiction to determiné the question as to whether or not a crime was committed, or whether or not the business claimed to be criminal should be supervised or oppressed by the police. If the defendants, as police officers, can be thus restrained from supervising the plaintiff’s business and investigating the question as to whether crime has or has not been committed upon the premises, it must be because a court of equity lias power, to determine whether or not a person has or has not been guilty of a crime and is subject to arrest, and it is that question which a court of equity has no jurisdiction to determine. As I am convinced that the complaint states no cause of action, and that the plaintiff cannot upon the trial succeed in obtaining an injunction, the court has no power, under the provisions of the Co'de of Civil Procedure, to grant an injunction pending the final judgment. ' -

I think the order appealed' from should be reversed and the motion for an injunction denied.

Clarke, J. (dissenting):

The injunction in Delaney v. Flood (45 Misc. Rep. 97 ; affd., 105 App. Div. 642, and reversed, 183 N. Y. 323) was issued by me. when sitting at the Special Term. In view'of the discussion which that case has had, it is important to consider precisely what- was before the Court of Appeals and what that court decided. In the opinion below (45 Misc. Bep. 101) it was said :■ “ Where on the street he (the police captain) shall post his men for - the purpose of preventing or detecting crime, is a detail of police administration with which the court will riot interfere., But it seems to iri.e that while it is his duty to suppress and restrain, that can only- mean in a lawful manner. He may observe,.lie may arrest, he may arraign, but if he arrests the court must pass upon the facts. The court - must do the suppressing. If he is to decide that "a place is to be suppressed as disorderly, and acts thereon out of court, it lodges a power of oppression in his hands which this court is not willing' to sanction. So- far, then, as he and his officers interfered with the customers of this place by statements as to its character and threats of possible raids, he proceeds in my judgment, without warrant of law. It is not enough that in this particular instance his motives may be proper .and the. end justifiable. If such" conduct were approved, any legitimate business might be ruined. The motion will be denied so far as it seeks to obtain an injunction preventing the posting of officers and inspection of the premises, and granted so far as it relates to the interference with proposed customers by -volunteered statements and threats.”

The injunction order restrained the defendant and all officers or agents under his control “ from in any mannér stopping any persons who may desire to enter the premises known as ¡No. 54 Bivington Street * * * or voluntarily informing them or any persoii that the-hotel conducted therein is a disorderly place, or that it is likely to be raided by the police department, * * * or that if a raid should be made upon" said premises, any person found therein at the time would be liable to arrest, or by interfering in any other way by voluntary statements as to the. character of said premises, or threats of possible raids to be made in or upon them, or by. interfering with any p>erson they may see going into said premises, or by informing any person they may see going into said premises, ,or any person in or upon said premises that the said premises is a house of prostitution or notorious to the community, or is liable to be raided, or in any way interfering with said premises by voluntary statements as to its character or possible raids.” That is, the order did not enjoin the police from inspecting the premises, from posting officers in or around or in front of it, or from making arrests therein or raids thereon. It did not even restrain them from answering inquiries as to the character of the place.. All it did do was to restrain the police officers from vohmteering statements in regard to the premises. In other words, the injunction sought only to restrain the destruction of a business by volunteered statements tending to scare customers, the court saying: “If such conduct were approved, any legitimate business might be ruined.” AncL it was this brdér that the Court of Appeals reversed, saying: “ The. whole subject may be briefly summed up in the statement that we see nothing in the case at bar to take it out of the ordinary rule that equity will not interfere to prevent the enforcement of the criminal law,” and answered the certified question : “ Will equity intervene to restrain such acts ? ” in the negative.

Feeling that the Court of Appeals has definitely decided the question in a case in which. I wrote in the .line used by Mr. Justice Laughlin in his opinion herein, and having been taught that the Appellate Division should not attempt to reverse the Court of Appeals, and that it is not even safe to attempt to distinguish, 1 dissent from the conclusion of my brethren and think that the order appealed from should be reversed, with costs.

Order modified as directed in opinion and as modified affirmed, without costs. Settle order on notice.  