Queen City Stock & Grain Co. v. Cunningham

McCLELLAN, C. J. The pith of this bill is that Austin, as chief of police of Birmingham, stationed Cunningham, a police, officer, at a place on a street of the city which commanded a view of the side door of Hewlett’s saloon and of a stairway leading to. the, floor above where Hewlett carried on a “stock exchange,” commonly known as a bucket shop, and directed Imh, said Cunningham, to take down the names of persons entering the saloon by that door or ascending to the bucket shop by the stair, and that Cunningham carried out these directions and thereby irreparably injured both the saloon and bucket shop business of the complainants, and was continuing so to do, so that intending patrons, by ¡the back door, of the saloon and intending customers of the bucket shop were deterred from their purposes in this regard to the diminution of each of said businesses and consequent loss of profits to the complainants. The sworn answer of Austin and Cunningham makes it clear, that while ithe latter was stationed at the place averred in the bill, it was not for the purpose of taking down the names of persons entering the saloon or ascending to the bucket shop, but only for the purpose of identifying and taking down the names when known to the officer of persons who ascended by that stair and another nearby into a room or rooms on the third floor of Hewlett’s building which the police authorities had good cause to believe were unlawfully occupied and used for gambling purposes, that ¡the officer was stationed at this place at 8 P. M. after the bucket shop was closed and all lights on the second floor had been extinguished and while those on the third floor were alight, and remained until midnight, during which interval only persons going to the third floor passed up the stairway, and that Cunningham had no instructions, and did not in fact seek to identify persons going into the saloon or up to the bucket shop, and did not at any time take down the • names of such persons. The relief sought is injunctive of 'the alleged espionage of Austin and Cunningham upon the patrons of the saloon and bucket shop. A preliminary writ issued. Respondents moved to dis [648] solve the injunction on the grounds (1) that, there was no equity in the bill, and (2) (that the 'answer denied the material allegations in the bill. ' On the hearing of this motion the 'complainants filed ex parte affidavits intended to refute the denials of the answer. ■ -Whether this i§ a case proper for such affidavits on a motion to dissolve on the denials -of the answer, we do not determine. Taking the affidavits into consideration,' we do not find that they, when closely analyzed and -the side-lights which they throw on the situation ■ are given due weight, meet' and overturn, or indeed materially weaken the denials of the answer. So that-virtually the case stands upon bill and answer, and motion to dissolve the injunction on the two grounds stated above. We do not consider the first ground; Adz., that the bill is Avitbout equity. The action of the court dissolving the injunction may Avell he justified on the second, the denials -of the ansAver; and upon-that ground we rest our concurrence with the -chancellor. The officer had of course the right to be and remain where he -was, in a public street. Indeed, the public at large had (the right to be there in any number short of -obstructing the thoroughfare. It may Avell have been that it Avas the officer’s duty to he anil remain there in the surveillance incident to Ms office. The ansAver, indeed, shows affirmatively that it was his duty and eAren the bill itself avers nothing to the contrary. The right of the officer Avas in no degree impeached by the fact that the position commanded a view of persons entering complainants’ places of business, nor was his duty less clear by reason of the indisposition of complainants and their patrons for the latter to be, seen going into or coming-out of such places. On the denials of the answer the officer in no Avay interfered Avith or molested these patrons further than was, in their supersensitiveness, incident to their coming Avithin the range of his vision. And the affidavits show nothing to the contrary. He did not take their names, he did not set down the names even of those he knew, he did not seek to identify them. It was only the supposed blight of his supposed evil or inimical eye as it casually fell upon them in, the- line [649] of his official outlook for other persons, properly under his surveillance, that is in fact complained of and songht to be enjoined. It has been held that a police officer, in the exercise of his right and the performance of his duty of surveillance for the. prevention or detection of reasonably apprehended crime or disorders, may station himself in the place of business of the citizen and remain there during business hours. — Weiss v. Herliby, 49 N. Y. Sup. 81; but however that may be, he certainly has a right and’ it is his duty to do what the answer shows Cunningham to have done. Upon the foregoing considerations, and without looking to the equity of the bill or the sufficiency of the denials of the • answer as. to the. alleged injury to the complainants, we hold that the preliminary injunction was properly dissolved. Affirmed.