Bunis v. Conway

• Decision Date: 13 November 1962
• Citation: 234 N.Y.S.2d 435,17 A.D.2d 207
• Parties: Nathan J. BUNIS, doing business under the firm name and style of Clinton Book Shop, Plaintiff-Appellant, v. Honorable John J. CONWAY, Jr., District Attorney of Monroe County, New York, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 435

234 N.Y.S.2d 435

17 A.D.2d 207

Nathan J. BUNIS, doing business under the firm name and style of Clinton Book Shop, Plaintiff-Appellant, v. Honorable John J. CONWAY, Jr., District Attorney of Monroe County, New York, Defendant-Respondent.

Supreme Court, Appellate Division, Fourth Department.

Nov. 13, 1962.

Filed Nov. 29, 1962.

Harris, Beach, Keating, Wilcox, Dale & Linowitz, Rochester, for plaintiff-appellant (Thomas M. Hampson, Rochester, of counsel).

John J. Conway, Dist. Atty. of Monroe County, in person, for defendant-respondent (S. K. Pollard, Rochester, of counsel).

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HALPERN, and HENRY, JJ.

HALPERN, Justice.

The plaintiff appeals from an order dismissing his complaint as insufficient, in an action for a declaratory judgment seeking an adjudication that the book 'Tropic of Cancer' by Henry Miller is not 'obscene' within the meaning of section 1141 of the Penal Law. The complaint alleged that the plaintiff conducted a book store in the City of Rochester and that he desired to sell the book but that the defendant, the District Attorney of Monroe County, had threatened to prosecute him for violation of section 1141 of the Penal Law if he sold it. The complaint alleged that the defendant 'has made similar statements to others and to the public at large to the effect that anyone who sold the book would be subject to prosecution under said section of the Penal Law'. The complaint further alleged that the plaintiff believed that the book was not obscene and that he 'desire[d] to sell it if it [was] legal to do so'. The complaint concluded with the statement that a prosecution would cause 'irreparable harm to the plaintiff personally and to his business [and that the] plaintiff has no adequate remedy at law'.

The Special Term dismissed the complaint upon motion upon the ground that an action for a declaratory judgment would not lie under the circumstances set forth in the complaint. In our opinion, the dismissal was erroneous.

An action for a declaratory judgment is the appropriate remedy for the determination of a justiciable controversy, where the plaintiff is in doubt as to his legal rights and wishes to avoid the hazard of taking action in advance of the determination of such rights (James v. Alderton Dock Yards, 256 N.Y. 298, 305, 176 N.E. 401, 403).

It is the settled law that an action for a declaratory judgment will lie 'where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved.' (Dun & Bradstreet v. City of New York, 276 N.Y. 198, 206, 11 N.E.2d 728, 732). The remedy of declaratory judgment is available, not only where the validity of a statute is in question, but also where its construction or its application to an undisputed set of facts is in question (New York Foreign Trade Zone Operators, Inc. v. State Liquor Authority, 285 N.Y. 272, 34 N.E.2d 316).

However, as the Court of Appeals noted in the case last cited, the remedy 'is not available to restrain the enforcement of a criminal prosecution where the facts are in dispute, or open to different interpretation' (285 N.Y. at p. 276, 34 N.E.2d at p. 319, citing Reed v. Littleton, 275 N.Y. 150, 9 N.E.2d 814). The rationale seems to be that, if the facts upon which the propriety of a criminal prosecution would depend are in dispute, the dispute ought to be resolved by the trier of the facts in the criminal prosecution in accordance with the rules governing criminal cases and that the obtaining of a declaratory judgment as to the facts would improperly interfere with the administration of the criminal law. This reasoning, however, is inapplicable, if the crucial question is one of law, since the question of law will be decided by the court in any event and not by the trier of the facts. Therefore, it has been held that a determination of the question of law in a declaratory judgment action would not 'improperly interfere with criminal processes' (New York Foreign Trade Zone Operators, Inc. v. State Liquor Authority, supra, 285 N.Y. at p. 277, 34 N.E.2d 319). 'Resort to this remedy and also to that of an injunction may be had even with respect to penal statutes and against a public official or public agency whose duty it is to conduct appropriate prosecutions, if the purpose be to avoid irreparable injury and if the sole question is one of law' (De Veau v. Braisted, 5 A.D.2d 603, 606-607, 174 N.Y.S.2d 596, 600, aff'd. 5 N.Y.2d 236, 183 N.Y.S.2d 793, 157 N.E.2d 165, aff'd. 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109; see also, Herald Publishing Company v. Bill, 142 Conn. 53, 111 A.2d 4; Lucky Calendar Co. v. Cohen, 19 N.J. 399, 117 A.2d 487).

The question of whether a particular book is obscene within the meaning of section 1141 of the Penal Law is a question of law, appropriate for decision in a declaratory judgment action, under the rule laid down in the authorities cited. No question of fact is involved, in the sense of a question as to what had factually occurred or what is factually proposed to be done. The content of the book is fixed and immutable. There may be different views as to whether the book comes within the condemnation of section 1141 of the Penal Law but this presents a question of law for ultimate decision by the court, depending upon the court's determination of the meaning, scope and applicability of the statute.

The peculiar nature of the question to be decided in an obscenity case was elucidated by Judge Fuld in People v. Richmond County News, Inc., 9 N.Y.2d 578, 216 N.Y.S.2d 369, 175 N.E.2d 681: '[T]he question whether a particular work is of that character [obscene] involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind,' quoting from the concurring opinion of Mr. Justice Harlan in Roth v. United States, 354 U.S. 476, 497-498, 77 S.Ct. 1304, 1 L.Ed.2d 1498. 'It involves not a imple question of fact, but a mixed question of fact and constitutional law, calling upon the court to make an appraisal of a publication and its contents against the requirements embodied in both State and Federal Constitutions (N.Y.Const. art. I, § 8; U.S.Const., 1st and 14th Amdts.). Consequently, if an appellate court were to rely upon and be bound by the opinion of the trier of the facts as to the obscenity of a publication it would be abdicating its role as an arbiter of constitutional issues' (9 N.Y.2d pp. 580-581, 216 N.Y.S.2d p. 370, 175 N.E.2d p. 682).

As this statement indicates, the question in an obscenity case is ultimately a question of constitutional law, in view of the limitations upon the power of the legislature in this field, imposed by Article I, section 8, of the New York State Constitution and by the First and Fourteenth Amendments of the United States Constitution. If the book is held not to fall within the terms of the statute, that is the end of the matter but if it is held that it comes within the terms of the statute, then the question must be faced whether the statute, as construed and applied, is a constitutional one. This question is ultimately one for decision, so far as the courts of this State are concerned, by the ...