Olympic Athletic Club v. Bingham

125 A.D. 793, 110 N.Y.S. 216, 1908 N.Y. App. Div. LEXIS 2897

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1908
• Status: Published

Opinion

Ingraham, J.:

In this case the defendants are charged with illegally and unlawfully entering upon the plaintiff’s premises without warrant and forcibly preventing the members of the plaintiff and their guests from indulging in roller skating on Sunday. The complaint alleges that the plaintiff and its members and guests have never been guilty of any violation of law, and judgment is demanded for $1,000 damages as well as an injunction restraining the defendants from interfering with the plaintiff or its members and guests and from entering upon the said premises without the permission of the plaintiff or without a lawful warrant of some court. So far as this action is to recover damages for an unlawful trespass it can undoubtedly be maintained; but there is certainly nothing to justify a court in such an action in granting an injunction restraining the police from entering the plaintiff’s premises. It would appear that there are two causes of action joined; one for damages for a past trespass, and the other for an injunction restraining future trespasses. I do not think under these facts that the court had any jurisdiction to restrain the police from entering the premises, and for that reason the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for, an injunction denied, with ten dollars costs.

McLaughlin, Clarke and Scott, JJ., concurred.

I concur in the reversal of the injunction order in this case upon the grounds stated in my concurring memorandum in Eden Musee American Co., Ltd., v. Bingham (125 App. Div. 780, 784), argued and decided herewith, which apply to the facts here presented.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.