
    John Devlin, Individually and as President of the University Social Club, Respondent, v. William McAdoo, William J. Hogan and William Hodgins, Individually and as Police Commissioner, Acting Inspector and Captain of the Sixteenth Police Precinct of the Police Department of the City of New York, Appellants.
    First Department,
    December 7, 1906.
    Trespass by police officers—when, prior injunction vacated on newly-discovered evidence — power of court to vacate injunction procured in bad faith.
    When an injunction restraining police officers from trespassing upon private premises involves questions of public interest, the court will entertain an appeal by the defendants on new affidavits, although guilty of loches.
    Although an original temporary injunction restraining such trespass by police officers was made permanent on default of opposing affidavits, the court will review the injunction on a subsequent appeal by the defendants when they present new affidavits showing that under protection of the injunction the plaintiffs are now violating the criminal law.
    An injunction cannot be made a means of securing protection for criminal acts, and when used for that purpose the police should be relieved from its operation. The court is without power to enjoin the proper enforcement of'criminal law. /
    
    When it is shown by new evidence that under a prior valid injunction the plaintiffs are violating the law the court will vacate the same in toto.
    (Per Ingraham and Scott, JJ.): A court of equity has no power to enjoin trespass by police officers.
    Appeal by the defendants, William McAdoo and others, from an order of the Supreme-Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of August, 1906, denying the defendants’ motion either to vacate an injunction pendente lite granted herein on the 29th day of December, 1905, or for a reargument of the motion for the injunction or for a resettlement of the injunction order by inserting a provision granting the defendants leave to apply to vacate or modify the same.
    
      Terence Farley, for the appellants.
    
      Frederic B. McNish, for the respondent,
   Laughlin, J.:

On the 11th day of December, 1905, upon affidavits showing that the University Social Club occupied the premises No. 23 East Eighth street in the borough of Manhattan for lawful purposes, as a private club, organized to promote good fellowship among the members and for social intercourse among the members,” and that without warrant or other process or authority of law, the defendants, as members of the police force of Greater New York, had, accompanied by other members of the police force acting under their direction, broken into the plaintiff’s club house with force and violence, had arrested the members present, had destroyed its property and had threatened to commit further.like acts of trespass, and had stationed patrolmen in uniform around the premises and prevented access thereto by the members of the club and their friends, a justice of the Supreme Court in the second department granted a temporary injunction restraining the defendants from trespassing, enter, ing or breaking into said premises, without due warrant of law or other lawful process as provided by law, or otherwise continuing to oppress plaintiff and trespassing upon the plaintiff’s premises until further order of this court ” and granted an order to show cause, returnable at Special Term in the county of Westchester on the 15th day of December, 1905, why the injunction should not be continued during the pendency of the action, and directed that service on the 12th of December, 1905, should be sufficient. The motion for the continuance of the injunction was- heard at Special Term at the time specified in the order to show cause. The order shows that the defendants appeared by the corporation counsel and by I. J. Beaudrias, and that no papers were read in opposition to the motion. The order entered upon the decision of the motion bears date the 29th day of December, 1905. It enjoins the defendants individually, and in their official capacity as members, of the police department and the officers under their respective commands and their respective agents, attorneys and servants, “from trespassing upon, entering or breaking into the premises occupied by the University Social Club, * * "" or entering the same without permission of the occupant, without due warrant of law or other lawful process, or in any manner continue to oppress plaintiff or interfere., in any manner with plaintiff or with the members of the said University Social Club, without due warrant of law or other lawful process and from trespassing upon or interfering with plaintiff’s said premises, either inside or outside.” On the 31st day of January, 1906, the defendants duly appealed from the order and their appeal is pending in the second department. On the 17th day of April, 1906, the venue of the action which was laid in the county of Kings was changed to the county of Kew York. The motion which gave rise to this appeal was" made at Special Term in the county of Kew York on the 24tli day of August, 1906, upon an order to show cause, obtained on the 16th day of July, 1906. The affidavits upon which the defendants moved show by competent evidence that the premises which, since the 29th day of December, 1905, have been protected from interference by the police, except by warrant or other lawful process, are and at all times referred to in the affidavits upon which the injunction order was granted have been, and ever since the date of the injunction order have been used as a poolroom where bets on horse races were taken in violation of the provisions of section 351 of the Penal Code. The only papers read in behalf of the plaintiff in opposition to the motion are the papers upon which the in junction order was granted and the affidavit of the attorney for the plaintiff showing, among other things, that the defendants have not perfected their appeal from the injunction.order; have not moved for a reargument of the motion ; that they did not serve their answers until after the lapse of several months and have taken no steps to bring the case to trial, although it might have been long since tried and decided. The moving papers show that the defendants were unable to prepare affidavits in opposition to the motion, in time to use the same on the return of the order to show cause why the injunction order should not be continued, and they asked for time within which to present affidavits, but that that application was denied by the court. The attorney for the plaintiff, however, in. his affidavit in opposition to the motion, states that the court gave them a day in which “ to submit papers in opposition ” to the motion. It does hot appear that the defendants requested the learned justice who granted the injunction order to grant them leave to move to vacate it, or that any motion to resettle it in that regard was made. The defendants do not appear to have been stirred to activity with respect to being relieved from the injunction order until after the learned justice who presided when it was granted had been assigned to the Appellate Division in the second department, and the venue had been changed to the county of New York, nor until many months thereafter. In the meantime the issues might have been tried at Special Term and decided upon the merits. After the lapse of seven months, the motion which resulted in the order from which the apppal has been taken was made and nearly three months elapsed before the appeal was argued in this court. Ordinarily, such delay in failing to bring the issues to trial, unexplained, would be sufficient ground to warrant this court in refusing to hear the appeal from the order or in continuing the injunction. The case, however, being one of public interest, involving, as it does, the enforcement of the criminal law, we deem it our duty to decide the appeal upon the merits. Our authority to reach the merits of the case is embarrassed by the failure of the defendants to meet the affidavits upon which the injunction order was granted upon the return of the order to show cause why it should not be. continued, or to- present an affidavit at that time showing their inability so to do and cause why they should be given further time. If they had done this, the Special Term should have afforded them a reasonable time.to present affidavits showing the facts, and if the Special Term had refused to do so, the order could have been reversed on appeal within a few weeks. If the defendants had presented in opposition to the motion for the injunction the affidavits which "they present now, it is inconceivable that the injunction order would have bepn granted, and had it been granted, it would have been promptly reversed on appeal.

Section 627 of the Code of Civil Procedure, which regulates the practice with respect to vacating or modifying injunction orders, provides as follows: “Where the injunction order was granted without notice, or where it'was granted upon notice, with leave to apply to vacate or modify it, the party enjoined may apply, upon" notice, to the judge who granted if or to the court, at a term where a contested motion in the action may be heard, for an order, vacating or modifying the injunction order.”

The respondent cites this provision of the law and apparently confidently urges that we are without jurisdiction in the premises. The learned counsel for the appellants suggests no avenue of escape, except upon the theory that the venue has been, changed and that for. that reason, as well as for tlie reason of his assignment to the Appellate Division, an application cannot now be made to the justice who presided and granted the order for a resettlement of the same so as to give leave to apply to vacate or modify it.

The case of McGorie v. McAdoo (113 App. Div. 271) does not stand in our way to do justice on this appeal. There, a similar in junction.order had been granted in the second judicial district, and after the venue was changed to the county of New York, a motion was made at Special Term, not upon new papers or upon-facts occurring subsequent to the granting of the injunction, but upon the papers upon which the injunction order w.as granted, to vacate the order upon the theory that under the decision of the Court of Appeals in Delaney v. Flood (183 N. Y. 323) the Supreme Court is without jurisdiction in any circumstances and-Upon any state of facts to issue an injunction against rnembem of the police force as such. To that-doctrine this court declined to subscribe. (Burns v. McAdoo, 113 App. Div. 172; McGorie v. McAdoo, supra.) In the case at bar, however, we think that the obstacles that at first seemed unsurmountable may be overcome, and justice may be done. If the affidavits merely showed what the defendants might have shown in. answer to the motion for the injunction, it is doubtful whether the defendants would not be confined to their remedy by appeal from the order or relegated to a trial of the issues upon the merits. The affidavits, however, show not only that this was a poolroom at the time the injunction order was granted, but also that it continued to be operated as a jioolroom down ,to the time the motion to" vacate the injunction was made in this department. Although the Special Term had jurisdiction to grant the injunction at the time the order was made, it did not have jurisdiction to grant immunity to the defendants from future violations of the law, or to unable the defendants, under the protection of 'the injunction, to conduct a poolroom on the premises. In these circumstances, the decision-as against these defendants, who had notice and are presumed to have had an .opportunity to controvert the moving affidavits and to fully present the facts when collaterally attacked, as here, leave to make the motion not having been granted, should in the orderly administration of justice be deemed conclusive that no facts then existed which justified the defendants in trespassing upon the plaintiff’s premises or otherwise interfering with them; but the court coulzd not adjudicate in advance that the plaintiffs would not at any time in the future be guilty of a violation of the law, or would not conduct upon the premises an illegal business or one subject to the supervision of the police force. While the injunction order stands, the plaintiff enjoys the protection .it affords. It was, • however, manifestly too broad for, literally, if a felony were committed, the defendants would' have no right to enter without a warrant, and if any other crime were committed they would have no right to enter without a warrant, even .though they might, but for the injunction order, have been able to lawfully enter and make arrests.

It must be assumed that the injunction order was granted upon the theory that the plaintiff not only was not violating the law, but that there was no reasonable ground to justify the police in believing that he was violating it. (Burns v. McAdoo, supra.) Of course, the court did not intend to protect the plaintiff from being raided by the police, should he change his lawful occupancy of the premises into an unlawful use. Although we should not now question collaterally the facts upon which the court acted, we should act upon the new facts arising subsequent to the granting of the injunction order. The court is without power to enjoin the police officers from enforcing the law, and when, as here, the court has granted an injunction upon the theory that the police were acting oppressively and were themselves alone violating the law, and invading the constitutional wights of the plaintiff, and it subsequently develops that the plaintiff- was violating the law, police officers should not be required to take the risk of violating the injunction order, but should be relieved from its operation. • On it appearing to the court, as it- appears by the affidavits upon which the motion to vacate the injunction was made, that these premises were conducted as a poolroom after the injunction order was granted, the right of the plaintiff to further protection under the injunction order terminated. The plaintiff has abused the process of the court by using the injunction order to shield him from detection and punishment in conducting an unlawful business. By concealing the true facts he deceived and misled the court into granting , the injunction under the protection of which he has continued to conduct a poolroom. On the facts disclosed the inference-is fairly deducible that he applied for the injunction in bad faith and instead of obtaining it to protect him in the enjoyment of his constitutional rights as the court was led to believe, . he obtained it to enable him to continue to violate the law without detection or interference by the officers clothed with the duty of enforcing the law. On the disclosure of such facts the court not only has the power but it is its duty to vacate the order in toto.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements,, and an order entered vacating the injunction order, with ten dollars costs." •

Patterson, Clarke and Scott, JJ., concurred.

Ingraham, J. (concurring):

The papers in this case illustrate the result of granting injunctions restraining the police officers from making an arrest when the criminal law of the State is violated. Upon granting such an injunction the plaintiff and his agents are allowed to commit crime upon their premises with impunity and the police are powerless as they are enjoined from entering the premises without a warrant, even for the purpose of procuring evidence to show that a crime is committed, and a warrant can only be-obtained upon proof of the commission of the crime. I think a-court of equity has no jurisdiction to entertain such an application, and for that reason I concur in the decision that the order appealed from should be reversed and the injunction vacated.

Scott, J., concurred.

Order'reversed, with ten dollars costs and disbursements, and motion granted, with ten dollar’s costs. Order filed.  