Brighton Athletic Club v. McAdoo

Kelly, J. The plaintiffs move for an order continuing ■a temporary injunction granted on June 3, 1905, ex parte in these cases, restraining the police authorities in the borough of Brooklyn from interfering with them, and from preventing them from playing games of baseball at various points in the borough on Sunday. The argument of the motions which had been adjourned to Thursday last, June twenty-second, by consent of the parties, was then adjourned until to-day, Saturday, June twenty-fourth, against the objection of the corporation counsel, and because of the unavoidable absence of plaintiffs’ counsel, and on his agreement to be present to-day. I regret that plaintiffs having procured these temporary injunctions from one of the justices' of this court do not appear to argue for their continuance or submit any brief or answer to the affidavits presented by the defendants, contenting themselves with a submission of the cases to the court without brief or argument. As was said a day or two’ ago in Craushaw v. McAdoo, 47 Misc. Rep. 420, applications for preliminary injunctions are governed by well-established principles of law. The right of the plaintiffs must be clear especially where the effect of the injunction gives to the plaintiff all the remedy to which he would be entitled if he had finally succeeded in ■ the action, and if the case is not free from doubt the court will not grant its writ but will leave the plaintiff to establish his rights at a trial where all the facts may be deliberately -examined. Weiss v. Herlihy, 23 App. Div. 608. Applying these familiar principles to the cases now presented to the court, I do not think the plaintiffs make out a case for the continuance of the stay. The question whether the games of baseball in which they desire to engage on Sunday constitute a violation of [434] Penal Code (§§ 259, 260, 265), depends on whether the games are “ public games of baseball,” i. e.} games held out to the public ■—■ games to which the public are invited and to which an admission fee is charged. Gaynor, J., People v. Poole, 44 Misc. Rep. 118. If so, they constitute a violation of the law and-it is the duty of the defendants to i nterfere to prevent violations of the law. It is not contended that the Legislature has prohibited-recreation or healthy sport which does not invade the sanctity of the day in the sections of the O'ode referred to. Mr. Justice Gaynor discusses the matter at some length in the case cited, and I agree that there is no prohibition against the man who is forced to labor during the week-days preventing him from enjoying himself in an orderly and decent manner on Sunday, so long as the repose of the community is not interrupted. But the prohibition is clear against Sunday games which are advertised, to which the general public are invited and which they attend in great numbers and to witness which money is charged directly or indirectly or which are conducted for financial profit. This is not the wholesome recreation of the individual which the law will not prevent — it may be sport but it is public sport and a gimsi-business undertaking. This is prohibited by the Legislature, whether wisely or unwisely it is no part of the court’s duty to say. If the law is improper, the remedy is by application to the Legislature for its repeal; it is not for the court to make the law, or to countenance its evasion. It is argued that there is no inherent evil in a game of baseball, and that attendance at such a sport by the public will keep them from less desirable resorts on Sunday; that on the whole the'pastime is healthy and honest, and that where the locality is such that the quiet and decency of the community are not disturbed, no good reason exists for forbidding the games. This may be true, but the remedy is with the law-making power and it would appear . that if these arguments are sound the attention of the Legislature should have been called to the matter before this. But the law remains on the statute-books and while it is there the police authorities should not be enjoined prelim [435] inary to a trial from enforcing it. People v. Moses, 140 N. Y. 214; People v. Dennin, 35 Hun, 327; Matter of Rupp, 33 App. Div. 468; Capital City Athletic Assn. v. Police Commissioner, 9 Misc. Rep. 189; People ex rel. Bedell v. De Mott, 38 id. 171; People ex rel. Poole v. Hesterberg, 43 id. 510; Dunham v. Binghamton & L. B. B. Assn., 44 id. 112; People v. Poole, supra. On the papers submitted to me in these cases the plaintiffs do not make cmt a case for preliminary injunction. The answering affidavits allege that the games are public games, that they are advertised, some of them in the daily papers, others by posters and circulars, or placards produced in court, and it is alleged that money is charged or collected or received in some manner from those invited to witness the games. These facts are not controverted or denied in any way, and following the uniform course of authority on the question it is my duty to deny the motions to continue the temporary injunctions heretofore granted. Motion denied,