Laughlin, J.:
This is a suit in equity to enjoin acts of trespass and oppression by members of the police force.
The plaintiff alleges and show's by affidavit that he is engaged- in business as a teacher and instructor of a physical cultux-e school at No. 1626 Broadway, in the city of New -York, borough of Manhattan ; that said preini'ses are situated iix the Twenty-second precinct, of which the defendant Bernard Gallagher is captain ; that the ground floor is occupied by a carriage manufacturer, and that the . plaintiff is the sole lessee of -the entire sécond floor of said premises, about twenty-five feet in width by sixty feet in' depth ; that he has occupied 'said premises during the five 'months preceding the commencement of the,action, and has employed as .superintendent and manager of said business one Professor William J. Lee, who is well known throughout the city of New Ytirk and other places as being an eminent specialist in the line of physical culture that he has on the outside of said premises signs announcing liis business “ and in ■ the studio, which occupies the whole floor leased by deponent, is contained.various paraphernalia- for giving lessons in exercise in calisthenics and athletic movements; ” that before he' leased the premises' he was engaged with the Equitable Life Assurance ¡Society/ and that prior thereto he was a traveling salesman for a mercantile house in New York citythat shortly after June 25,1905, gn officer named Lolnneyer, attached to defendant Gallagher’s command, called at his place- and asked him and Professor Lee and one . other person present \yflat they were doing there and asked Lee [167]*167if lie had' a diploma to practice physical culture, and “ told us all, after some further little conversation, to get out of said premises, as the Police Department had been notified that gambling'was going on in said premises; that Police Officer Lohmeyer and others have called there continuously since last-mentioned occasion and have stationed themselves in the doorways and hallways and at the entrance to deponent’s premises, and on the premises occupied by deponent such police officers, including Officer Lohmeyer, have at various times ordered all the persons on said premises to get out, ' and deponent has. at various times seen Officer Lohmeyer and other officers connected with the command of the defendant Gallagher speak to persons desiring to . enter plaintiffs premises, and inquire of them their business, and what was going on on said premises;” that daily since said occasion the defendant Gallagher has malí-, ciously, oppressively, unlawfully and wrongfully stationed and kept within plaintiffs place of business a number of officers under his command, and that the plaintiff has repeatedly asked said officers to depart if they had no other business .there than to watch occurrences on plaintiff’s premises, and has asked them that if they saw any violations of law to make an arrest and depart, and that the officers stated and asserted that they were on the premises on orders from Gallagher for the purpose of watching and seeing that no gambling took, place and for no other reason; that customarily during said period the officers arrived at plaintiff’s place about two p. >r. each day except Sunday and rérnained until nix p. m. ; that “ some of the officers stand in the hallways of the said premises and at other times station themselves on the ground floor at the door leading into said hallway, and also upon the landing at the head of the stairs upon said premises occupied by the plaintiff, and have also occupied the chairs of the plaintiff in his said place of business and endeavored to interfere with plaintiff’s customers, * * and at different times attempted to eject some of plaintiff’s customers^ from his said premises ; ” that the officers have threatened persons entering the premises with arrest, and have stated to them that if they entered there they- would arrest them for being in a gambling house or poolroom; that on or about July 1 and July-3,1905, the officers came to his premises when Professor Lee, one Thomas Lee', an attendant.for plaintiff, and one Dickson, a customer, were present; [168]*168that the officers talked in a loiid tone of voice in the presence of other customers as to what‘was going on there, and that they said they were there to see if any gambling was taking place, and that at said time they attempted to eject the said Dickson from the premises ; that the said defendant Gallagher was acting under the instruct tions of the defendant McAdoo ; that plaintiff has notified Gallagher of all the facts stated herein, and despite his repeated requests to Gallagher to remove the officers from the premises, Gallagher refused, and asserted that he would continue.to keep them there to cause plaintiff annoyance and to endeavor to restrain him from doing business, and refuses to set any limit as to the time he will keep the officers there; that the premises have never been used as a poolroom or for gambling by plaintiff, nor has he permitted them to be used as such by any. of his employees or customers; that plaintiff lias distributed at various times since occupying the premises for the purpose of advertising his business circulars containing the following
“ Physical Culture Studio,
“ No. 1626 Broadway, New York.
“ I have arranged with the eminent Professor W. J. Lee to take charge of my private studio, and respectfully solicit your patronage.
'“For terms and further particulars kindly address me as above, or at No. 69 Stuyvesant Avenue, Brooklyn, N. Y.; also Professor Lee at aboVe address. G. L. BURNS.”
The plaintiff also presents an affidavit of Professor Lee to the effect that he has been teaching aiid demonstrating physical culture for the past ten years, and has been employed by the plaintiff for the last five months ; that he is an .author and lecturer on physical culture, has been associated with the editor and proprietor -of the Physical Culture Publishing Company, whose offices are at 29 East Nineteenth street, for three years, and that he wrote an article for the New York Herald,, a copy of which he makes a part of his affidavit, and which article purports to illustrate his art. The article in question appeared July 26, 19Q3, and has fiye photographs of Professor Lee taken at different times to show his success in reducing weight by his physical culture methods. The affidavit of Professor Lee further shows, that he has known the [169]*169plaintiff for five years, and is “at the present time engaged with him as manager and conducts the business for Imn at No. 1626 Broadway ; ” that he arrives at the place at ten a. m. and remains there until ten p. m., with the exception of the time he spends in .securing his meals. He also corroborates plaintiff in regard to the acts of the officers upon the premises generally and particularly as regards the incidents of July first and July third, when plaintiff claims that the officers attempted to eject his customer Dickson from the premises.
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Laughlin, J.:
This is a suit in equity to enjoin acts of trespass and oppression by members of the police force.
The plaintiff alleges and show's by affidavit that he is engaged- in business as a teacher and instructor of a physical cultux-e school at No. 1626 Broadway, in the city of New -York, borough of Manhattan ; that said preini'ses are situated iix the Twenty-second precinct, of which the defendant Bernard Gallagher is captain ; that the ground floor is occupied by a carriage manufacturer, and that the . plaintiff is the sole lessee of -the entire sécond floor of said premises, about twenty-five feet in width by sixty feet in' depth ; that he has occupied 'said premises during the five 'months preceding the commencement of the,action, and has employed as .superintendent and manager of said business one Professor William J. Lee, who is well known throughout the city of New Ytirk and other places as being an eminent specialist in the line of physical culture that he has on the outside of said premises signs announcing liis business “ and in ■ the studio, which occupies the whole floor leased by deponent, is contained.various paraphernalia- for giving lessons in exercise in calisthenics and athletic movements; ” that before he' leased the premises' he was engaged with the Equitable Life Assurance ¡Society/ and that prior thereto he was a traveling salesman for a mercantile house in New York citythat shortly after June 25,1905, gn officer named Lolnneyer, attached to defendant Gallagher’s command, called at his place- and asked him and Professor Lee and one . other person present \yflat they were doing there and asked Lee [167]*167if lie had' a diploma to practice physical culture, and “ told us all, after some further little conversation, to get out of said premises, as the Police Department had been notified that gambling'was going on in said premises; that Police Officer Lohmeyer and others have called there continuously since last-mentioned occasion and have stationed themselves in the doorways and hallways and at the entrance to deponent’s premises, and on the premises occupied by deponent such police officers, including Officer Lohmeyer, have at various times ordered all the persons on said premises to get out, ' and deponent has. at various times seen Officer Lohmeyer and other officers connected with the command of the defendant Gallagher speak to persons desiring to . enter plaintiffs premises, and inquire of them their business, and what was going on on said premises;” that daily since said occasion the defendant Gallagher has malí-, ciously, oppressively, unlawfully and wrongfully stationed and kept within plaintiffs place of business a number of officers under his command, and that the plaintiff has repeatedly asked said officers to depart if they had no other business .there than to watch occurrences on plaintiff’s premises, and has asked them that if they saw any violations of law to make an arrest and depart, and that the officers stated and asserted that they were on the premises on orders from Gallagher for the purpose of watching and seeing that no gambling took, place and for no other reason; that customarily during said period the officers arrived at plaintiff’s place about two p. >r. each day except Sunday and rérnained until nix p. m. ; that “ some of the officers stand in the hallways of the said premises and at other times station themselves on the ground floor at the door leading into said hallway, and also upon the landing at the head of the stairs upon said premises occupied by the plaintiff, and have also occupied the chairs of the plaintiff in his said place of business and endeavored to interfere with plaintiff’s customers, * * and at different times attempted to eject some of plaintiff’s customers^ from his said premises ; ” that the officers have threatened persons entering the premises with arrest, and have stated to them that if they entered there they- would arrest them for being in a gambling house or poolroom; that on or about July 1 and July-3,1905, the officers came to his premises when Professor Lee, one Thomas Lee', an attendant.for plaintiff, and one Dickson, a customer, were present; [168]*168that the officers talked in a loiid tone of voice in the presence of other customers as to what‘was going on there, and that they said they were there to see if any gambling was taking place, and that at said time they attempted to eject the said Dickson from the premises ; that the said defendant Gallagher was acting under the instruct tions of the defendant McAdoo ; that plaintiff has notified Gallagher of all the facts stated herein, and despite his repeated requests to Gallagher to remove the officers from the premises, Gallagher refused, and asserted that he would continue.to keep them there to cause plaintiff annoyance and to endeavor to restrain him from doing business, and refuses to set any limit as to the time he will keep the officers there; that the premises have never been used as a poolroom or for gambling by plaintiff, nor has he permitted them to be used as such by any. of his employees or customers; that plaintiff lias distributed at various times since occupying the premises for the purpose of advertising his business circulars containing the following
“ Physical Culture Studio,
“ No. 1626 Broadway, New York.
“ I have arranged with the eminent Professor W. J. Lee to take charge of my private studio, and respectfully solicit your patronage.
'“For terms and further particulars kindly address me as above, or at No. 69 Stuyvesant Avenue, Brooklyn, N. Y.; also Professor Lee at aboVe address. G. L. BURNS.”
The plaintiff also presents an affidavit of Professor Lee to the effect that he has been teaching aiid demonstrating physical culture for the past ten years, and has been employed by the plaintiff for the last five months ; that he is an .author and lecturer on physical culture, has been associated with the editor and proprietor -of the Physical Culture Publishing Company, whose offices are at 29 East Nineteenth street, for three years, and that he wrote an article for the New York Herald,, a copy of which he makes a part of his affidavit, and which article purports to illustrate his art. The article in question appeared July 26, 19Q3, and has fiye photographs of Professor Lee taken at different times to show his success in reducing weight by his physical culture methods. The affidavit of Professor Lee further shows, that he has known the [169]*169plaintiff for five years, and is “at the present time engaged with him as manager and conducts the business for Imn at No. 1626 Broadway ; ” that he arrives at the place at ten a. m. and remains there until ten p. m., with the exception of the time he spends in .securing his meals. He also corroborates plaintiff in regard to the acts of the officers upon the premises generally and particularly as regards the incidents of July first and July third, when plaintiff claims that the officers attempted to eject his customer Dickson from the premises. He further states that Officer Lohmeyer repeatedly called at the premises prior to July 1, 1905; that he came into the office of the plaintiff and sat down and stated that he was going to sit there; that deponent on three or four occasions asked him to leave, whereupon he did leave, but that another officer came and took his place on said premises; that when Lohmeyer and the other officers first came to the premises they said that “ a letter had been Written to the Captain, meaning the defendant Gallagher, which had been unsigned, stating that there was going to be an alleged poolroom conducted on said premises and that the Police Department suspected that such was the purpose of plaintiff’s establishment.” The affidavit of Thomas Lee, the alleged attendant of the plaintiff, substantiates the plaintiff generally as to the acts of the officers and shows that he “ has heard Officer Lohmeyer order all persons out of said premises and seen him interfere with a customer or patron of plaintiff known as Mr. William D. Dickson; ” that at different times when deponent was entering the premises he was asked his business by the officers and was followed upstairs into plaintiff’s premises by them; that he has been employed as an attendant at various gymnasiums and schools for physical culture in New York city. Both he and Professor Lee make statements in their affidavits tending to show that there was no gambling of any kind on said premises. Professor Lee says, “ that at no time while deponent lias been on said premises, has there been any gambling of any kind, nature or description conducted by the plaintiff herein thereon, nor is there on said premises any apparatus or paraphernalia for the conducting of a pool room or any other gambling device.” Thomas Lee says that át no time has he “ ever seen atiy gambling of any kind, nature or description on said premises, and at no time has* permitted the said premises to be used for any such purpose by [170]*170any persons whatsoever.” He" liad been employed by the plaintiff for five months. ‘
The plaintiff also presented an affidavit by the said Dickson to the effect that some time early in June of 1905, he received a copy of the circular which plaintiff claims to have sent out to advertise his'bnsiness; that in answer to it, he, on July 1, and again on 'July 3, 1905, called at plaintiff’s place of business tó see about making arrangements for a course of instruction. When he arrived there on July first, there were certain men there who stated they Avere police officers and avIio asked him Avhat he wanted ; that when he told them that he wanted to see the plaintiff and Professor Lee, they ordered him out of said premises;. that Lee at that time stated "to the officers the purpose,and object of his, Dickson’s, visit, and that the officers in Return said it made no difference, and “ told ns all to get out, and ejected us from said premises ;” deponent returned again on July third and Avas treated in a similar manner by police officers who were on the premises at that time; that deponent never saw any gambling of any Lind-on said premises, and had no idea.that they Avere used for any such purpose. •
Opposed to this evidence the defendants read in opposition to the motion three short affidavits. Frederick Lohmover, the officer referred to, said that the records show — but does not specify what records — that at one time the building at 1626 Broadway Avas used as a poolroom and that it is carried on the books of the precinct as a suspicious place. He admits of having himself visited the premises, but denies that officers were stationed at the premises to warn people either going in or coming out from the premises; “ that the said premises are fitted up to some- extent as a gymnasium, but that deponent on his visits has not seen.any other evidence of its being a physical culture institute, and that on several occasions persons on the premises have failed to give any satisfactory reason for their being around the- place.” The affidavits of Captain Gallagher and Acting Commissioner Thomas F. McAvoy merely show that they have given no spécific instructions to the officers in regard to inspecting this place." In an answering affidavit the plaintiff "showed that officers linder the coinmánd of the defendant Gallagher have, since the order to-show cause was obtained, visited the premises and have remained there on some occasions for three hours at a time, and [171]*171that they have to deponent’s knowledge repeatedly interfered and accosted persons and patrons of deponent.
Although the moving papers are not as full and complete as they should have been, and as it would seem they might have been* yet they show that the plaintiff was lawfully in possession of the premises in question and conducting a lawful business thereon which required no license or permit, and which he was entitled to conduct without the in'spection and supervision of the police. The defendants show no justification for the unlawful trespass upon the plaintiff’s rights and premises. They merely show that some records — the nature of which they do not disclose,.but which we may assume were police records — show that these premises were at one time used for poolroom purposes, but they do not show as a matter of fact that they were ever used for such purposes, or that the plaintiff or any of his employees or customers ever visited the same 'at any time when, if ever, any unlawful-business was conducted thereon.
Mo reasonable ground is shown to justify even a suspicion that the plaintiff is conducting an illegal business., It is manifest that there is no adequate remedy at law for the- ruination of a lawful business by such means and methods as appear to have been employed by the police in this case. Unless a court of equity has and_ exercises jurisdiction to. enjoin an unlawful trespass of this nature by the police, it is within their power to levy tribute upon every lawful business and even upon citizens at their private homes; and if demands for tribute are not acceded to, it is within their power to ruin any lawful business and to destroy the good character and reputations of any citizen or resident of the city and his'family.
If the courts are powírless to afford adequate redress "for such acts of oppression and violations of individual rights guaranteed by the Constitution, citizens and others entitled by treaty to the rights of citizens will be driven to take the law in their own hands, and if unable to defend their possessions against unlawful trespasses by the police, they may -resort to th.e use- of firearms and other means. It is, therefore, in my opinion, upon grounds of public policy and in the interests of law and order as well as for the protection of sacred individual rights guaranteed by the Constitution, for which-there is no other adequate remedy, advisable that in a proper case an injunction should issue to enjoin a malicious or unlawful trespass by, police [172]*172officers wliich they threaten to continué. Of course,, the courts may not and will not interfere to prevent arrests or the. execution and enforcement of the criminal law; and so .long' as the police authorities, keep within their proper sphei-es and lines of duty, they cannot be and will.not be embarrassed by the courts; . It is only in those cases where the police officers are acting'without authority • and are either ignorantly, willfully or maliciously committing or threatening, to commit illegal acts against the rights of a citizen to bis . irreparable damage, for which there.is no other adequate remedy, that an injunction should ever be issued. When, however, the courts are appealed to by a lawabiding citizen, or one entitled to the rights of ■ a citizen conducting a lawful business which is invaded by the police' Who- persist in remaining indefinitely, and show no justification therefor,- as in this case, an injunction may safely be issued, and ' there is little danger that the precedent, will render it difficult, for the police officers to enforce the law and to perform their full duties' - under the law. A court of equity should -not undertake to. determine upon conflicting: evidence whether or not a, crime" has been committed or a business is unlawful; but; I see no impropriety in enjoining ah unlawful trespass by the police, which is threatened to be continuous in its nature and will do irreparable damage, where the evidence is undisputed that the law is not being violated and no . unlawful business is being. conducted on the premises. This is a well-settled ground of .equity" jurisdiction as to trespasses of indi-i viduáls, and when, the trespass by. police officers is clearly unlawful and will produce irreparable damage, I see no good reason why it should riot be exercised as to them.
The case of Delaney v. Flood (183 N. Y. 323) is cited and relied upon by tlie; appellant as holding that equity is without jurisdiction to issue an in junction against police officers. I agree with the, comments upon that decision by Presiding Justice O’Brien in Stevens v. McAdoo (112 App. Div, 458), and by Mr. Justice Patterson in McGorie v. McAdoo (113 App. Div. 271); and as it is clearly, distinguished by them it is unnecessary that the grounds of distinguishment should be restated.
The order granted in this case is, however, too broad, It en joins-the defendants from stationing and maintaining- police-officers in the halls and doorways leading to the premises occupied by,the plain[173]*173tiff. It does not appear that the plaintiff had any rights with respect to the halls or doorways other than those on the second floor, except for access by himself and customers; and it does not appear but that the defendants were permitted by those having jurisdiction over the halls and doorways to station officers therein. The injunction order should, therefore, be modified by striking from the enjoining clause thereof the words “ and in the halls and in the doorways leading thereto,” and as thus modified, it should' be affirmed, without costs.
O’Brien, P. J., and Patterson, J., concurred; Ingraham and Clarke, JJ., dissented.