
    SUPREME COURT—SPECIAL TERM—NIAGARA COUNTY,
    June 1915.
    HENRY KLINGER v. JOHN F. RYAN.
    (91 Misc. 71.)
    ¡(1.) Sunday—Moving pictures on, not a crime.
    The exhibition of moving pictures on Sunday is not a crime in this state.
    The legislature alone may command how Sunday be kept, and unless it so authorizes a municipality cannot by ordinance compel the closing of moving picture shows on Sunday, nor may its mayor prohibit them by the conditions of a license.
    (2.)-Same—Injunction not granted to restrain picture shows on SUNDAY.
    An injunction will not be granted to restrain the arrest of plaintiff, the proprietor of a moving picture show, for opening it on Sunday contrary to the conditions of a license granted to him by a mayor of a city.
    (3.) Same—Penal law, § 854.
    If plaintiff is oppressed or injured by any unlawful act of defendant, the chief of police, he may invoke section 854 of the Penal Law, or bring an action against him for damages.
    Motion to continue temporary injunction restraining defendant from arresting relator for opening his moving picture show on Sunday, contrary to the conditions of the mayor’s license.
    
      A. R. Smith, for relator.
    
      A. F. Premus, for defendant.
    
      
       See Notes, Vols. 18, p. 407; 19, p. 41; 22, p, 43.
    
   Pound, J.:

It now seems to be established (a) that the Penal Law of the state of New York does not prohibit the exhibition of moving pictures on Sunday (People v. Hemler, 127 App. Div. 356), and (b) that a municipality cannot independent of express legislative authority by ordinance compel and enforce Sunday closing of moving picture shows. People ex rel. Kieley v. Lent, 166 App. Div. 550; affd., 215 N. Y. 8. I am unable to distinguish between the inherent power of the city to prohibit Sunday shows by ordinance and the inherent power of the mayor to prohibit them by the conditions of a license. The legislature alone may command how Sunday may be kept, and it has not delegated the power to the mayor of North Tonawanda by giving to that official the mere general power to license entertainments.

It will be observed, however, that in both the cases cited above as holding that it is not a crime to exhibit moving pictures on Sunday the question arose on a criminal prosecution. The general rule is that equity will not interfere to prevent the enforcement of the criminal law, although the police are mistaken in their opinion as to what constitutes a crime. So held in the cases of Sunday shows at the well-known Eden Musee (wax figures) (125 App. Div. 780) ; at the Keith & Proctor theatres (Id. 791) ; and at the Manhattan Theatre (movies) (Id. 784), the Appellate Division, in each case, and many others, reversing Special Term orders granting such injunctions against police interference.

I am well aware that equity will by injunction prevent irreparable injury by unlawful trespass of the police on private property as held in Fairmont Athletic Club v. Bingham, 61 Misc. Rep. 419, but that principle has no application here. I am also aware that many injunctions have been issued in Special Term to restrain interference with Sunday movies, but mostly before the law was settled on the appeals where such injunction orders were reversed, supra.

If the plaintiff is oppressed or injured by any unlawful act of the defendant, he may invoke Penal Law, Section 854, or he may have an action at law for his damages. Delaney v. Flood, 183 N. Y. 323, 329.

Motion to continue injunction denied, with ten dollars costs, on the ground that plaintiff has an adequate remedy at law.

Motion denied, with ten dollars costs.  