Caplan v. Murphy

New York Supreme Court

Caplan v. Murphy

38 Misc. 2d 512, 236 N.Y.S.2d 979, 1962 N.Y. Misc. LEXIS 2270

DecidedNovember 20, 1962

StatusPublished

This text of 38 Misc. 2d 512 (Caplan v. Murphy) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Caplan v. Murphy, 38 Misc. 2d 512, 236 N.Y.S.2d 979, 1962 N.Y. Misc. LEXIS 2270 (N.Y. Super. Ct. 1962).

Pincite

Opinion

John L. Flynn, J.

Defendant moves for dismissal of the complaint for legal insufficiency. Plaintiff in three causes of action complains principally of the claimed fact that uniformed police officers have required him to move on and have interfered with his right to position himself alone on the sidewalk on 42nd Street in New York City and to enjoy the scenery. It would seem that in each of the three causes and by the allegations thereof that a tort is alleged. No money damage is demanded. Plaintiff insists that the action is one for declaratory judgment and the relief sought is a judgment declaring that police officers have no right to order the plaintiff or any other person lawfully standing on a public sidewalk to move on while such person is neither congregating with orders nor interfering with the equal rights of others. Any declaration of this character, assuming one is in order, may not be made in a vacuum to apply to every instance, regardless of time, place and circumstance, and such a judgment would completely shackle the defendant in the performance of his duties. The fact that some hazard may be entailed in a challenge to the authority of any police officer in any particular instance in his endeavor to deal with the plaintiff or any other person in the performance of his duties does not warrant the maintenance of the action. Betaining jurisdiction of the action would serve no useful or proper purpose. The motion is granted and the complaint is dismissed.

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John L. Flynn, J.

Defendant moves for dismissal of the complaint for legal insufficiency. Plaintiff in three causes of action complains principally of the claimed fact that uniformed police officers have required him to move on and have interfered with his right to position himself alone on the sidewalk on 42nd Street in New York City and to enjoy the scenery. It would seem that in each of the three causes and by the allegations thereof that a tort is alleged. No money damage is demanded. Plaintiff insists that the action is one for declaratory judgment and the relief sought is a judgment declaring that police officers have no right to order the plaintiff or any other person lawfully standing on a public sidewalk to move on while such person is neither congregating with orders nor interfering with the equal rights of others. Any declaration of this character, assuming one is in order, may not be made in a vacuum to apply to every instance, regardless of time, place and circumstance, and such a judgment would completely shackle the defendant in the performance of his duties. The fact that some hazard may be entailed in a challenge to the authority of any police officer in any particular instance in his endeavor to deal with the plaintiff or any other person in the performance of his duties does not warrant the maintenance of the action. Betaining jurisdiction of the action would serve no useful or proper purpose. The motion is granted and the complaint is dismissed.

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Bluebook (online)

38 Misc. 2d 512, 236 N.Y.S.2d 979, 1962 N.Y. Misc. LEXIS 2270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caplan-v-murphy-nysupct-1962.