.The statute under which the ordinance was passed, as well as the., ordinance itself, made its violation a crime. The same statute also provides as follows : “ Any city officer or other person may, and the chief of police, and every'policeman and every police officer of the city shall, with or without process arrest, detain and take before the. recorder o'f said city every person committing a violation of any ordinance of - the common .council when the offense is committed in his presence.” (Laws.of 1896, chap. 747, § 52.)
This injunction prevents obedience to- that statute; it restrains and enjoins the -enforcement of the criminal law; it enjoins and restrains the police authorities of the city of Kingston from arresting the plaintiff, his agents or servants, for perpetrating a crifne, to .wit, the violation of such ordinance.
In Burch v. Cavanaugh (12 Abb. Pr. [N. S.] 110), Learned, J., said: “I am not aware that injunctions are. granted to restrain threatened arrests, and this is for a very good reason.- If a person is illegally arrested, he has the prompt and efficacious -relief by habeas ■ corpus, and he has also redress from the wrong by an action of damages. Injury-by an illegal arrest is not of such an irreparable nature , that' it cannot be compensated in damages.” (See, also, Murphy v. Board of Police of N. Y., 11 Abb. N. C. 337; Kramer v. Police Department of N. Y., 53 N. Y. Super. Ct. 492.) It may be laid down as a general rule, I think,-, that equity will not interfere by in junction ■ to restrain the- enforcement of the criminal laws. (Davis v. American Society, etc., 75 N. Y. 362; Matter of Sawyer, 124 U. S. 200.)
There may be exceptions-to this general rule,-and extreme cases may arise, where an injunction may be proper to prevent a grave '• injustice ánd an irreparable injury;
In Wood v. City of Brooklyn (14 Barb. 425) an injunction was granted restraining, the city authorities from enforcing, so much of . their ordinance -as in effect prohibited the sale of spirituous- liquors by. innkeepers to their lodgers and lawful travelers on Sunday,, pur- ‘ scant,. to- their. licenses. In that case the ordinance apparently pro- •- vided for a trial of the alleged offender without a'jurypand.the plain-; tiff alleged “ that the.- business by which he earns a livelihood for himself and his family is seriously and constantly injured; that lie apprehends from the course pursued by the officers .of the- city -that *561he may be illegally arrested on a Sunday, while engaged in his lawful pursuits, and confined, without the privilege of procuring bail, until the next day, and then be subjected to a hasty trial, without the benefit of a constitutional privilege, and all under an illegal ordinance.” The court said: “For some of these wrongs the law would afford him adequate redress, but no sufficient compensation could be made for family destitution or disreputable imprisonment.”
Assuming that case to have been properly decided, it has very few things in common with this case. Here the defendant, if arrested, can, if he so desires, have a jury trial, the same as any other person accused of a misdemeanor; here there is no claim that the business of the plaintiff will be broken up, only that the business he expects from the merry-go-round, which is only a part of, and incident to, the principal business carried on by him.
It is claimed upon the part of the respondent that the ordinance in question is void, as being in conflict with the' Municipal Law, and this proceeding is apparently brought for the purpose of testing that question. Whether the ordinance is a valid one is a question of law and not of equity; and? while courts of equity may determine questions of law, as incident to a proceeding in equity, equitable proceedings cannot be maintained for the sole or principal purpose of determining such questions.
“ The general rule is, that the court will not restrain a prosecution at law when the question is the same at law and in equity. * * *■ An exception exists where an injunction is necessary to protect a defendant from oppressive and vexatious litigation. But the court acts in such cases by granting an injunction only after the controverted right has been determined in favor of the defendant in a previous action.” (Wallack v. Society, etc., 67 N. Y. 23; Eldridge v. Hill, 2 Johns. Ch. 281; West v. The Mayor, 10 Paige, 539; Marvin Safe Co. v. The Mayor, 38 Hun, 146.)
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for a preliminary injunction denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion for preliminary injunction denied, with ten dollars costs.