
    DAVIS against THE SOCIETY FOR PREVENTION OF CRUELTY.
    
      New York Common Pleas;
    
    
      Special Term,
    
    May, 1874.
    Injunction.—Cruelty to Animals.—Crime
    Under Laws of 1866, ch. 682, and Laws of 1867, ch. 375, § 1, dislocating the limbs of animals to be slaughtered, while they are yet alive, and plunging them while yet alive in boiling water, are criminal offenses and if committed in the presence of a duly designated officer0of the American "society for the prevention of cruelty to animals, under Laws of 1867, ch. 375, § 8, and Laws of 1766, ch. 469, § 7, subject the offender to arrest without a warrant.
    An injunction should not be granted, restraining arrests by such officers until a decision in a court of justice as to the alleged cruelty of a method of treating animals, especially in a case where the persons so arrested, if aggrieved, have an adequate remedy at law, and the pecuniar^ responsibility of those malting such arrests is unquestioned.
    Where a preliminary injunction had been granted in such case,— Held, that it should be dissolved.
    Edward W. Davis, and others, brought an action in this court against the American society for the prevention of cruelty to animals, and Henry Bergh, for an injunction against making arrests under the circumstances which appear from the pleadings and opinion below.
    The complaint (verified January 9, 1873) was to the effect that the plaintiffs are engaged in the business of slaughtering hogs at an abattoir in West 39th-street, New York, and are jointly interested therein, and have permission from the board of health of said city to ■carry on said business, and have complied with all the regulations and ordinances of said board and of said ■city, and of the laws of this State in regard to said business. That they have at considerable expense constructed said abattoir in the most improved manner for conducting said business with dispatch. That the method is to pass a chain around one of the hind legs of the animal, suddenly raise it from the ground by means of a drum or pulley and then immediately stick or stab it in the throat with a sharp knife, producing almost instantaneous death. That said method is the most humane and expeditious that has yet been adopted, causes speedy and almost painless death, drains the carcass almost entirely of blood, thus improving the wholesomeness and quality of the food, and the market value thereof, without bruising, inj uring or discoloring the flesh of the animal. That the defendant the American society for the prevention of cruelty to animals, was incorporated by the legislature April 10, 1866, and Henry Bergh is the president thereof. That Bergh on January 6, 1873, came to said abattoir and announced that plaintiffs and all others there engaged, must discontinue the slaughtering of hogs in such manner, and that he would not allow said business to be thus carried on, and thereupon arrested one of the plaintiffs and one of his employees for alleged cruelty to animals, and asserted that thereafter, he would arrest all persons engaged in •said business and stop the same as often as he found plaintiffs conducting it in manner aforesaid. That plaintiffs make contracts for the sale of said animals before they are slaughtered, aucL that any interference with their business as threatened, would work irreparable injury and loss to them, preventing them from fulfilling their contracts, depriving them of the services of their skilled workmen, &c. That for an action to be brought by each plaintiff and workman for each arrest, would cause a multiplicity of actions and ■entail great expense, without affording adequate compensation for the damage sustained. Plaintiffs then demand that defendants, their officers, agents, &c, be perpetually restrained and enjoined from interfering with plaintiffs’ business, in any way, or with their employees, until final judgment in the matter. Several affidavits are annexed to the complaint, corroborating the material facts therein stated.
    The answer (verified March 3, 1874), denies all the material allegations in the complaint, and also that plaintiffs have complied with the law, but on the contrary avers that plaintiffs, in the prosecution of their business, have violated and do constantly violate the provisions of an act entitled, “An act better to prevent cruelty to animals,” passed April 19, 1866, and also of the act entitled “ An act for the more effectual prevention of cruelty to animals,” passed April 12, 1867. That the said business conducted by the plaintiffs has regard more to the speed with which it can be accomplished, than the comfort of or the cruelty to, the animals, for the benefit of whom said statutes were enacted, Defendants aver that said animals are needlessly tortured and tormented by the mode of slaughtering adopted by plaintiffs. That each animal, by means of an iron chain fastened around its ankle, was raised by a pulley to a floor above, and in some instances four stories above the pen in which it was confined, thereby dislocating its leg, was then stabbed in the throat, and immediately thereafter, while yet living, plunged in a cauldron of boiling water. That defendants requested, plaintiffs to use a wide leather strap in raising said, animals, secured around both legs instead of one, and to allow life .to become extinct before plunging them into boiling water ; to which plaintiffs consented and agreed. Defendants further aver that said society is charged with enforcement of all laws of this State for the protection of, and prevention of cruelty to animals, by the arrest, conviction and punishment of all violators thereof, and that the execution of said laws has been intrusted by said society to its president Henry Bergh (the defendant) in which relation and capacity he acted in the alleged interference with plaintiff’s business.
    A preliminary injunction having been granted, a. motion was made to continue such injunction.
    The affidavits of the defendant Bergh and two police-officers were read, corroborating said answer, and counter affidavits read and submitted on the part of plaintiffs, in denial of their violation of the law.
    
      A. Oakey Hall, for the motion.
    I. the plaintiffs’ method of slaughtering hogs is a very usual one, and their business should not be interfered with by the society and Mr. Bergh, until after a jury have, by verdict, pronounced it cruel.
    II. The defendants although ex colore public officers, have no right, on Mr. Bergh’s interpretation of the law and the acts in question, to proceed summarily and without warrant, and disturb a legitimate business (High on Injunctions, § 796; U. S. v. Duluth, 1 Dillon C. Ct., 469).
    III. Proceedings at law for the damage sustained would involve a multiplicity of suits. The application is therefore within the scope of equity jurisdiction.
    IY. The sanitary considerations set up by the plaintiffs’ affidavits are not met. Assuming that the killing is in a degree cruel (and all killing is cruel, per liaps), the maxim solus populi est suprema lex should govern, and if the method adopted be the most healthful, that should be paramount.
    
      Plbridge T. Gerry (with whom was Ambrose Monell), for the defendants, opposed.
    I. The business of the plaintiffs is a public nuisance, and not entitled to any protection in equity, upon the facts shown (Brady v. Weeks, 3 Barb., 157; Harris v. Thompson, 9 Id. 364).
    II. The defendants, in enforcing the laws against cruelty, act as public officers, and are entitled to protection as such. Injunctions to paralyze their efforts will not be granted (Stage Horse Oases, 15 Abb. Pr. N. S., 51, and authorities cited).
    III. This suit is anomalous. It is an attempt to prevent by an injunction in equity, the criminal prosecution of an offender, until the court of equity shall itself decide whether such offender has been guilty of any offense. In other words, a criminal, fearing prosecution in a criminal court, applies to a court of equity, to try the issue, and meanwhile, to restrain the officers of the law from proceeding according to law.
    IV. The preliminary injunction was im providently granted, and should be vacated, with costs.
   Larremobe, J.

In this case an injunction is sought to be maintained against a corporation and its ministerial officer, whose rights and powers are conferred by statute. Chapter 683 of the Laws of 1866 provides that every person who shall by his act or neglect maliciously kill, maim, wound, injure, torture or cruelly beat any horse, &c., or other animal, shall, upon conviction, be adjudged guilty of a misdemeanor.

The defendant, the American society for the prevention of cruelty to animals, was incorporated by an act of the legislature of this State, passed April 19,1866 {Laws of 1866, oh. 469), and by section 7 of said act, the police force of the city of New York, were directed as occasion should require to aid said society, its members or agents, in the enforcement of all laws, which had been or might thereafter be enacted for the protection of dumb animals. Another act was passed by the legislature, April 12, 1867 {Laws of 1867, ch. 375), which provides (§ 1) that if any person shall overdrive, overload, torture, torment, or needlessly mutilate any animal, or cause the same to be done, &c., every such offender, shall, for every such offense, be guilty of a misdemeanor.

Section 8 of said act, authorizes any agent of said society, upon being designated thereto by the sheriff of any county in this State, to make arrests within said county, and bring offenders violating the provisions of said act, before any court or magistrate having jurisdiction thereof.

There is no pretense that said society, and Henry Bergh, its president, are not authorized to enforce the-observance of the statutes above mentioned within the city and county of New York.

The defendants being thus clothed with proper legal authority, their official action should not be interfered with or restrained, unless it be injurious and wrongful in its nature, especially in a case where the parties-aggrieved have an adequate remedy at law, and the-pecuniary responsibility of the defendants is unquestioned (Sterman v. Kennedy, 15 Abb. Pr., 201; Moore v. Board of Commissioners of Pilots, 32 How. Pr., 184 Gilbert v. Mickle, 4 Sandf. Ch., 357; Prendorill v. Kennedy, 34 How. Pr., 416).

The real issue in this case is not whether the mode of slaughtering animals, as set forth in the complaint, is the best and most expedient, but whether or not, independent of such mode, wanton acts of cruelty are allowed and practiced, such as dislocating the limbs of the animals slaughtered, and plunging them while yet. alive in boiling water. Such acts are made criminal offenses by statute, and if committed in the presence of á duly designated officer of said society subjects the offender to arrest without a warrant (Broadway Stage Company v. American Society for the Prevention of Cruelty to Animals, 15 Abb. Pr. N. S., 51). For such violation of the statute, the defendants claim the right of arrest, and the plaintiffs ask the preventive process of the court.

I have not been able to find, nor have I been referred to any case which authorizes such a remedy. To grant it, would be assuming the position that the plains tiffs would not, during the pendency of this action, violate the statutes in question, and, therefore, the defendants whose official duty it is to prevent and. punish such violation, must be restrained in the exercise of rights expressly enjoined upon them by the statute.

The right to an injunction in any case is not ex debito justicias, but is always addressed to the sound discretion of the court. It would be a wide stretch of judicial discretion to inhibit a public officer, for any time from arresting, and prosecuting offenders against a criminal statute. Even in actions purely civil, an injunction would not be granted against a merely apprehended trespass (Mayor of N. Y. v. Conover, 5 Abb. Pr., 171; N. Y. Life Ins. & Trust Co. v. Supervisors of N. Y., 4 Duer, 192 ; Chemical Bank v. Mayor, &c., 12 How. Pr., 476; Lewis v. Oliver, 4 Abb. Pr., 121; Wilson v. Mayor, 4 E. D. Smith, 675).

Plaintiffs do not seek to restrain a trespass affecting a corporate franchise, but ask relief against acts which must necessarily involve individual misconduct. For this, their remedy at law is adequate and complete, and the defendants, upon whom the law has devolved most important trusts, should be left to an unrestrained exercise of their lawful powers, subject only to a right of action for their abuse.

Injunction dissolved, with costs, to abide event of suit.  