Burns v. McAdoo

Clarke, J. (dissenting):

The injunction in Delaney v. Flood (45 Misc. Rep. 97 ; affd., 105 App. Div. 642, and reversed, 183 N. Y. 323) was issued by me. when sitting at the Special Term. In view'of the discussion which that case has had, it is important to consider precisely what- was before the Court of Appeals and what that court decided. In the opinion below (45 Misc. Bep. 101) it was said :■ “ Where on the street he (the police captain) shall post his men for - the purpose of preventing or detecting crime, is a detail of police administration with which the court will riot interfere., But it seems to iri.e that while it is his duty to suppress and restrain, that can only- mean in a lawful manner. He may observe,.lie may arrest, he may arraign, but if he arrests the court must pass upon the facts. The court - must do the suppressing. If he is to decide that "a place is to be suppressed as disorderly, and acts thereon out of court, it lodges a power of oppression in his hands which this court is not willing' to sanction. So- far, then, as he and his officers interfered with the customers of this place by statements as to its character and threats of possible raids, he proceeds in my judgment, without warrant of law. It is not enough that in this particular instance his motives may be proper .and the. end justifiable. If such" conduct were *177approved, any legitimate business might be ruined. The motion will be denied so far as it seeks to obtain an injunction preventing the posting of officers and inspection of the premises, and granted so far as it relates to the interference with proposed customers by -volunteered statements and threats.”

The injunction order restrained the defendant and all officers or agents under his control “ from in any mannér stopping any persons who may desire to enter the premises known as ¡No. 54 Bivington Street * * * or voluntarily informing them or any persoii that the-hotel conducted therein is a disorderly place, or that it is likely to be raided by the police department, * * * or that if a raid should be made upon" said premises, any person found therein at the time would be liable to arrest, or by interfering in any other way by voluntary statements as to the. character of said premises, or threats of possible raids to be made in or upon them, or by. interfering with any p>erson they may see going into said premises, or by informing any person they may see going into said premises, ,or any person in or upon said premises that the said premises is a house of prostitution or notorious to the community, or is liable to be raided, or in any way interfering with said premises by voluntary statements as to its character or possible raids.” That is, the order did not enjoin the police from inspecting the premises, from posting officers in or around or in front of it, or from making arrests therein or raids thereon. It did not even restrain them from answering inquiries as to the character of the place.. All it did do was to restrain the police officers from vohmteering statements in regard to the premises. In other words, the injunction sought only to restrain the destruction of a business by volunteered statements tending to scare customers, the court saying: “If such conduct were approved, any legitimate business might be ruined.” AncL it was this brdér that the Court of Appeals reversed, saying: “ The. whole subject may be briefly summed up in the statement that we see nothing in the case at bar to take it out of the ordinary rule that equity will not interfere to prevent the enforcement of the criminal law,” and answered the certified question : “ Will equity intervene to restrain such acts ? ” in the negative.

Feeling that the Court of Appeals has definitely decided the *178question in a case in which. I wrote in the .line used by Mr. Justice Laughlin in his opinion herein, and having been taught that the Appellate Division should not attempt to reverse the Court of Appeals, and that it is not even safe to attempt to distinguish, 1 dissent from the conclusion of my brethren and think that the order appealed from should be reversed, with costs.

Order modified as directed in opinion and as modified affirmed, without costs. Settle order on notice.