(dissenting):
The plaintiff is the proprietor of a small restaurant at 3STo. 34 Second avenue in this city. He seeks in this action an injunction to restrain the defendant, who is the police captain of the fourteenth police precinct, from stationing police officers permanently within his premises. These officers enter the plaintiff’s restaurant every day at one o’clock f. m. and remain there all day and all night, with the exception of one hour, which they allow themselves for dinner elsewhere. They neither eat nor drink in the plaintiff’s premises. They simply sit down there, avowedly for the purpose of detecting crime, but thus far, as they acknowledge, finding none.. They do this deliberately and ‘in defiance of the plaintiff’s urgent and repeated protests; and they do it under the defendant’s express orders. This the latter admits. He also admits that, when the plaintiff complained to, him upon the subject, he not only declined *616to withdraw his men, but declared with emphasis that, if it was necessary “ to continue ” — we quote from his answer — “ to have officers stationed in said premises until the sign 1 To Let ’ was placed upon the windows thereof, he would do so.” He now seeks to justify his conduct by saying that his purpose is to prevent gambling on the premises. And he furnishes evidence tending to show that, prior to the adoption of these measures, card playing was on two or three occasions discovered by some of his officers in a room back of the plaintiff’s restaurant. He also shows that upon such discovery he secured the arrest of the plaintiff and' others for gambling. It appears, however, without dispute, that these arrests proved unavailing, and that whenever they were.made, the accused persons were either, discharged by the police magistrate before whom they were brought or ultimately acquitted. Upon these facts the defendant expresses his belief that the plaintiff has kept a gambling house upon the premises in question; and he also says that complaints have been repeatedly made to him that the premises were being used for such unlawful purposes. With the exception, however, of the few, incidents to which reference has been made, there is no legal evidence to support these complaints or to warrant the defendant’s belief. The suggestion of the defendant’s counsel, that the plaintiff persistently and flagrantly uses these premises for a disorderly house, is not borne out by anything which appears upon the record. The picture which he presents of the plaintiff as a criminal who has the temerity to come into a court of equity asking it to help him to violate the law is drawn largely from suspicion and imagination and not from the actual facts established in the case. This overdrawn picture is in reality a perversion of these facts, the only effect of which is to divert attention from the real question presented and to prejudice its impartial consideration.
The real question, squarely presented, -is ' whether- the police department, in order to detect and punish crime, may lawfully station officers upon the premises of a citizen, and keep them there in anticipation of suspected criminal practices. This is the sole question presented by the actual .facts. In its consideration, and, indeed, throughout this discussion, it must be carefully borne in mind that the plaintiff is not seeking to enjoin a threatened arrest or to try in a court of equity the question whether certain acts constitute a *617crime. It is well settled that this may not be done. (Davis v. American Society, etc., 75 N. Y. 362; Kramer v. Police Department, 53 N. Y. Super. Ct. 492; Kenny v. Martin, 11 Misc. Rep. 651.) He makes no attempt to enjoin an arrest, brt merely to enjoin what he alleges to be illegal acts of an oppressive character. Hor does he seek to. restrain a police official from performing duties imposed upon him by law. Indeed, his sole object is to keep the official within his legal duties; that is, to prevent the defendant from going outside the lorn to oppress and injure him.
We may premise by stating that it is substantially conceded that a private citizen would have no right to remain continuously upon the premises of the plaintiff against his wishes.. It is not necessary to consider at length the question discussed by counsel as to the duties of a restaurant keeper toward the public, or wherein these duties differ from. those of an. innkeeper under the common law. It may, however, be said briefly that the keeper of a public restaurant is only bound to furnish food to such fit persons as apply. When such a person has had a reasonable time to finish his meal and make his preparations for departure, he has no right to remain upon the premises against the will of the proprietor. What greater right, then, has a police official ? Plainly none, save such as is expressly or derivatively conferred upon him by law. When such official invades a citizen’s house or shop, and there oversteps the boundaries to which a private individual is limited, the burden is upon him to point to statutory authority in justification of his action. There can be no presumption that the invasion of a man’s premises is legal. Apart from the statute, the only presumption is that a police officer possesses the powers of an ordinary peace officer at common law. .
What, then, is the defendant’s claim of authority in the case at bar ? The only statutory provision to which he points is section 282 of the Consolidation Act. That section makes it the duty, in general, of the police to prevent crime, and confers specific authority to “ observe and inspect” gambling houses and other public places. This authority to “ observe and ■ inspect ” was not intended to embrace anything approaching to permanent occupation. This is clearly indicated not only by the terms thus employed, but by the *618context, and especially by what follows. Thus, it is provided by section 285 of the same act that the superintendent of police, upon the report of two or more householders, giving good ground for a belief that any room or premises is being used as a common gaming house, common gaming room or common' gaming premises,” may authorize ah entry into them by members of the police force, “ who may forthwith arrest all persons there found offending against law, but none others.” This express permission to enter and a/rrest forthwith, hedged about as it is with safeguards, and applying only to common gaming rooms, is a forcible answer to the claim made here. There are other special provisions, such as section 514 of .the Code- of Criminal Procedure, permitting search at any time of the person or premises of one adjudged an habitual criminal, and also sections 1998, 2004 and 2018 of the Consolidation Act relating to attendance at theatrical exhibitions, which point strongly in the same direction. The doctrine, “ Expressio unius est exclusio alteriusf may fairly be held to apply. It is apparent, therefore, that the provisions of section 282 of the Consolidation Act, making it the duty of the police force to prevent crime, to detect and arrest" offenders, to carefully observe and inspect all places where business' is conducted under an excise or other license, all gambling houses and other evil resorts,1 and to repress and restrain all unlawful and disorderly conduct or practices therein, afford no warrant for any act in the nature of a permanent occupancy by the police of any such place or resort. The purpose of the statute is to afford the police authority to.repress and prevent crime by the specified means, viz., by promptly arresting, with or without warrant, any person or persons who, upon .an inspection of the enumerated premises, may be found there violating the law. Such is the plain import of the language used in the last sentence of this section 282.- This language is as follows: “ And for these purposes, with or without a warrant, to arrest all persons guilty of violating any law or ordinance for the-' suppression or punishment of crimes or offenses.” Even this latter provision, being in derogation of liberty, should be strictly construed. (Dillon Mun. Corp. [4th ed.] § 211, and cases there cited.) Plainly, then, the purpose of the statute is not to authorize police captains to fill all evil resorts with one or more paid public agents and require these agents to remain in such resorts as per*619maiient supervisólas of the morality or lawful conduct of their inmates and frequenters. It is fair to say that the respondent’s counsel hardly questions these principles. But he denies their applicability to the case at bar. What he says, in effect, is that a restaurant is a “ public place,” and thus comes within the category of ferries, railroad stations, theatres and public gatherings, at which police officers have always been stationed without question. The fallacy of this argument consists in likening these enumerated “ public" places ” to the plaintiff’s case. The latter’s restaurant is not in any'sense analogous to a ferry, railroad station, theatre or public meeting. The presence of policemen in these latter places is an ordinary and essential public duty, just as much as patrol duty upon the streets or parks. Hot so, however, in the case of a private business, where the only public element is a general appeal for support. Ferries and railroads, though the subject of private adventure and gain, are essentially designed for the public benefit. The public has a vital interest in the objects of such business. The localities where such business is conducted are at all times public, in the broad sense of the term. In the case of theatres and' public meetings, large numbers of people are brought together upon specified occasions and for limited periods of time. Then and there the police power is appropriately exercised to preserve order. But with this exercise the authority ceases. What right, for instance, would; a captain of police have to direct his men to remain in a public hall or theatre before and after the meeting or performance, to so remain day in and day out; in fact, permanently, and without regard, to the orderly regulation of the premises upon any particular occasion? We cannot but think that this “ public places ” argument is strained and unsound. Our conclusion, upon a careful review of the statute, is that the defendant has exceeded his authority, both in its terms and scope. The only remaining question, therefore, is whether he should be enjoined.
The rule is well settled that a' continuing trespass is remediable by injunction (Wheelock v. Noonan, 108 N. Y. 179; Carpenter v. Gwynn, 35 Barb. 395; 3 Pom. Eq. Juris. § 1357), and that an in junction may be had against public officers who violate private rights, where the wrong would ordinarily be redressable in equity. (People v. Canal Board, 55 N. Y. 390; People ex rel. Negus v. Dwyer, *62090 id. 402.) As was said by Allen, j., in the former case: “ That public bodies and public officers may be restrained by injunction from proceeding in violation of law to the prejudice of the public or to the injury of individual rights, cannot be questioned.” (P. 393.) In the case .at bar the remedy at law is plainly inadequate. The plaintiff cannot well eject the defendant’s officers by force. Any attempt to do this would at once bring him in conflict with the entire police force' of the precinct under the defendant’s command. To remit the plaintiff to this remedy would be a mockery. Nor would an action at law afford him adequate redress. To secure anything like redress at law he would have to bring a fresh action each day, and that very consideration is one of the usual grounds upon which equity acts, viz., to prevent a multiplicity of suits. But in no one suit, nor, indeed, in a multiplicity of suits, could the plaintiff establish or secure his damages; and while he was resorting to these practically useless remedies his business would naturally diminish and be ultimately ruined. . The true and only substantial remedy, therefore, for such a continuing wrong as the present is by injuction.
Let us then briefly consider some of the technical objections which the respondent alleges against the granting of an .injunction fendente lite.
First, he claims that the material allegations of the plaintiff’s complaint are denied by his answer and the opposing affidavits. In this, however, he is in error. He confuses his Own affirmative allegations of new matter set up as a defense with the material allegations of the plaintiff’s complaint. It is proper at this point to inquire what are the material allegations of the complaint. Eliminating all irrelevant matter, they are, in substance, the plaintiff’s ownership of the restaurant business, and the defendant’s continuous trespasses to the injury of that business and to the prejudice of the plaintiff’s rights therein. The plaintiff’s ownership is not positively . denied. It is in the complaint positively alleged, while the denial is but on information and belief. There is not, in fact, a particle of legal evidence to gainsay the plaintiff’s ownership, and his allegation on that head is fully corroborated by another affiant. Then, too, the continuous trespasses under the defendant’s orders are expressly admitted. It would seem to follow that the real equities of the complaint are' substantially undenied. They are, in fact, either admitted or denied *621on mere information and belief, and so far as they are thus denied they are fully proved.
Second. Next, the maxim is invoked that one who seeks equity must come into court with clean hands. Here, again, the new matter affirmatively set up by the defendant is confused with the real equities of the complaint. The defendant seems to think that, unless a man is a good and worthy citizen, he can have no equity as against wrong and oppression. In our judgment the plaintiff’s good citizenship and general morality have nothing to do with the concrete point presented for consideration. His equities are not founded upon personal qualities or character, nor is he required, as a condition of obtaining equitable relief, to prove his innocence of the charges which induced the defendant to violate his rights. He must, it is true, come into a court of equity with clean hands; that is, with clean hands quoad the very cause of action alleged. ' If he does this he fulfills the maxim although in the abstract he may be persona non grata. In equity, as well as in law, all men are equal.
Lastly, it is claimed that an injunction pendente lite should not be granted, but that the plaintiff should first be remitted to a trial at Special Term. This would undoubtedly be a correct disposition of the plaintiff’s application if the essential facts were in dispute, but, as we have seen, they .are not. Even if the defendant’s affirmative proofs went much further than they do, still he should be kept within the bounds prescribed by law. We must again assert in this connection, and it cannot be asserted with too great emphasis, that the defendant cannot, under the authority to “ observe and inspect,” practically take possession of the plaintiff’s premises, or plant his officers permanently therein. If we are right in this view of the law, there is surely nothing in doubt which requires to be clarified by a formal trial. Every fact which is essential to raise the question of the plaintiff’s right to an injunction clearly appears in the present record. The question now before us, therefore, is distinctly one of legal right, the consideration of which we cannot properly postpone. To postpone consideration of such a question when it is thus squarely presented would be to make the court a passive ally of the wrongdoer. This view does not lessen our condemnation of the crime here sought to be prevented. Gambling is an undoubted evil, and all lawful means should be invoked and utilized for its suppression; *622but there is something more important: than even the prevention of" this evil, and that is the preservation ¡of the.fundamental principles upon which civil liberty rests., These principles should never be lost sight of even in the case of the humble, or even • of the criminally suspected, and"' certainly the doctrine . should be impressed upon public officers," of all people, that the righteous end does not justify the unlawful means: r
The order appealed from,, therefore, should be reversed, with ten dollars costs: and disbursements of the! appeal, and the motion for an injunction granted, with ten dollars costs. .
Yak Brunt, P. J., concurred!., i
Order affirmed, with costs.
Note.—The rest of the cases of' this term, will he found in the' next volume, 24 App. Div.— [Rep.