Cleary v. McAdoo

Laughlin, J.: This is a suit in equity for permanent relief of the same nature and effect as that granted by the temporary injunction order. The plaintiff alleges and shows by affidavits ‘that he is conducting in room 904 in the building known as Mo. 99 Massau street an agency for the distribution of news, consisting of stock quotations, the results of base ball games, horse racing, athletic contests and like sporting news; that he furnishes this news to various persons throughout the boroughs of Manhattan and Brooklyn by means, of telephones at a monthly expense of $2,500; that the police became suspicious that he was running a poolroom in violation of section 351 of the Penal Code, and on or about the 26th day of May, 1905, the captain of the precinct in which the premises are located, accompanied by three Officers, visited the room occupied by the plaintiff, demanded admittance and were admitted, under protest, as they had an axe and sledgehammer, and arrested the plaintiff and two of his employees; that at the, time of the arrest the plaintiff and his employees were engaged in the lawful business of conducting said agency, and. were not guilty of any violation of the law; that the officers who made the arrest tore and chopped out and removed the telephones, and the captain informed the plaintiff that if the latter continued to occupy the premises the officers would continue to re-enter the premises and remove the telephones, using force if necessary; that the plaintiff and his employees, after a hearing before a magistrate, were duly discharged; that since the arrest, [180] daily, for many' weeks, police officers, under the command of the defendants, attempted to enter the plaintiffs premises to inspect the same,'and threatened to force their way in if refused admittance; , that plaintiff was informed by- the captain when arrested that he was acting by direction of his superior officers, who suspected that a poolroom was being" conducted on tile premises, and that defendants “ stationed and kept ” patrolmen at plaintiff’s place, of business. The defendants show in opposition-to the motion that on the day of the arrest the captain who made it received information that led . him to believe that in said room “ there was being carried - on forwarding and-registering of. bets upon the speed of horses in violation of section 351 of'the Penal Code ; ” that a number of the men . who the captain, knew to have been engaged in the business of sell-ing pools upon horse racing were seen constantly going in and out of said room ; that when he visited the premises, at the time of making the arrest the only sign upon the door was, “Báy State Traction Company; ” that the door was locked, and upon, the officers knocking for admission admittance was refused, and . the door was not opened until they threatened to "break in ; that they found within the usual paraphernalia of a poolroom and three telephones were in operation, and racing sheets of the races-in New York, Louisville and St. Louis were found in the room; that the plaintiff gave the name of Donnelly ;'that one of the officers who assisted in making the arrest personally knew the plaintiff and his two' employees who were arrested “ to have beeti engaged in the ■ business of selling pools,” and that at' the time of the arrest there were pinned to the table in front of the three operators, racing sheets relating to the races upon the New York, Louisville and St. Louis tracks; that, the officers who made the ^rrest acted in good' faith and, in performance of what they believed to be their duty as officials. _ _ . ■ . Thp injunction’ order was.granted prior to the decision of the Court of Appeals in Delaney v. Flood (183 N. Y. 323), and we are asked to reverse the order upon the authority of that decision' and upon the theory that a-court of equity has no jurisdiction to issue an injunction order'against members of the police force." I ' am unwilling' to subscribe to that doctrine for the reasons assigned in the opinion in Burns v. McAdoo (113 App. Div. 165), and I [181] believe that such a rule would be against public policy and inimical to the liberties and rights of the People guaranteed by the Constitution. In the case at bar the plaintiff does not very satisfactorily show the legitimacy of his business, and the facts presented by the defendants are sufficient to show that they had probable cause tó believe that he was conducting a poolroom, which is a felony. I am of opinion, therefore, that the injunction order was improperly granted and should be vacated. It follows that the order- should be reverséd, with ten dollars costs and.disbursements,«and motion denied, with ten dollars costs. O’Brien, P. J., and Patterson, J., concurred; Ingraham and Clarke, JJ., concurred in result. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order tiled.