Shillitani v. Valentine

269 A.D. 568, 56 N.Y.S.2d 210, 1945 N.Y. App. Div. LEXIS 3040

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1945
• Status: Published

Opinions

Per Curiam.

In proceedings in the nature of mandamus under article 78 of the Civil Practice Act, it is a fundamental rule that a peremptory order may not issue unless the petitioner has a clear legal right to the relief which he seeks. (Matter of Leitner v. New York Telephone Co., 277 N. Y. 180, 186.) On all the facts and circumstances disclosed in this record, it seems clear that petitioner was using the telephone in question to a large extent for unlawful activities in violation of sections 986 and 991 of the Penal Law, and there was enough to indicate that the facilities of the telephone company were being used to further illegal gambling operations.

That the petitioner was discharged by the magistrate “ does not of itself prove the falsity of the charge ” (People ex rel. Restmeyer v. N. Y. Telephone Co., 173 App. Div. 132, 134, First Dept.). Petitioner is invoking the equity powers of the court and equity will not lend its aid to further the commission of illegal or criminal acts. Petitioner has failed to show a clear legal right to.the relief here asked.

A request of the law enforcement officers to the telephone company to discontinue the telephone service would, under the circumstances here disclosed, be sustained if complied Avith (People ex rel. Restmeyer v. N. Y. Telephone Co., supra, 133), and it was unnecessary for the police to remove, the telephone in the manner in which it was removed in the first instance. But, on this record, the telephone company was Avithin its rights in refusing to reinstate the service.

The order appealed from should be modified so as to direct a dismissal of the petition against both respondents-appellants on the merits and as so modified affirmed, with costs and disbursements to the respondents-appellants.