Hughes Tool Co. v. Fielding
| Decision Date | 21 May 1948 |
| Citation | 297 N.Y. 1024,80 N.E.2d 540 |
| Parties | HUGHES TOOL COMPANY, Appellant, v. Banjamin FIELDING, Commissioner of Licenses, et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department, 272 App.Div. 1048, 75 N.Y.S.2d 287.
Action by the Hughes Tool Company against Benjamin Fielding, as Commissioner of Licenses of the City of New York, and Arthur W. Wallander, as Police Commissioner of the City of New York for a declaratory judgment and an injunction.
The plaintiff had produced a film called ‘The Outlaw’. That film was reviewed in accordance with Article 43 (now article 3) of the Education Law, Consol.Laws, c. 16, and was licensed by the motion picture division of the Education Department of the State of New York. The defendants, following public announcements that the picture would open at three Boradway theaters, requested a private showing. After this showing, it was charged, the Commissioner of Licenses contended that the film was obscene and threatened to revoke the license of any theater which exhibited it. The Police Commissioner threatened and continued to threaten to prosecute any such person under Section 1140-a of the Penal Law, Consol.Laws, c. 40. The issue presented as stated by defendants was whether despite the provisions of Section 1088 and 1092 (now sections 128, 132) of the Education Law, and the absence of express language in Article 43 providing immunity from criminal prosecution under Penal Law, ss 1140-a and 1141, the action of the Motion Picture Division of the State Department of Education permitting the public exhibition of a motion picture barred the prosecution of the exhibitor of such motion picture under those statutes for exhibiting obscene, indecent, and immoral pictures. The answer alleged certain affirmative defenses. In the second affirmative derense, the defendant Fielding alleged that under the provisions of Section 773 of the New York City Charter and Sections 773a-7.0, B32-23.0 and B32-26.0 of the Administrative Code of the City of New York, the defendant as Commissioner of Licenses had supervision over motion picture theaters and the licenses for such theaters and the duty to protect public morals against exhibition of lewd, obscene or indecent motion picture films. In the third affirmative defense, the defendant Wallander alleged that as Police Commissioner he was charged with the duty under Section 435 of the New York City Charter to prevent the commission of crime, including violations of Sections 1140-a and 1141 of the Penal Law.
The plaintiff moved under Rule 109 of the Rules of Civil Practice for an order dismissing the affirmative defenses. The defendants cross-moved under Rule 112 of the Rules of Civil Practice for judgment on the pleadings dismissing the complaint upon the ground, among others, that the complaint failed to state a cause...
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