BURSTYN, INC., v. McCaffrey

• Decision Date: 05 January 1951
• Citation: 198 Misc. 884
• Parties: Joseph Burstyn, Inc., Plaintiff,<BR>v.<BR>Edward T. McCaffrey, as Commissioner of Licenses of The City of New York, Defendant.
• Court: New York Supreme Court

198 Misc. 884

Joseph Burstyn, Inc., Plaintiff,

v.Edward T. McCaffrey, as Commissioner of Licenses of The City of New York, Defendant.

STEUER, J.

January 5, 1951.

O'Connor & Ferber for plaintiff.

John P. McGrath, Corporation Counsel (Saul Moskoff, Joseph J. Lucchi and Murray Rudman of counsel), for defendant.

Osmond K. Fraenkel, Robert Markewich, John Finerty, Arthur Garfield Hays and Herbert Monte Levy for New York City Civil Liberties Committee and another, amici curiæ.

STEUER, J.

On December 22, 1950, defendant, commissioner of licenses, notified the Paris Theatre Corporation that if it continued to exhibit a motion picture called "The Miracle" steps would be taken in regard to its license. Defendant gave further notice to the plaintiff, the distributor of the film that similar action would be taken in regard to any theatre which exhibited the film. Upon the film's being shown at the Paris Theatre he suspended the license of the theatre, apparently for as long as it threatened to show the picture. He took this action because as he says, he found the picture "both officially and personally to be a blasphemous affront to a great many of the citizens of our city."

It is admitted that defendant's action amounts to a ban of the picture. The action seeks to enjoin him from so doing and the motion seeks a temporary injunction to prevent such action pending the trial. Two questions are presented: whether the commissioner has any authority to take such action, and, if he has, whether that authority was capriciously or arbitrarily exercised. On this application, quite properly, stress was laid on the first proposition being purely a question of law. The second question might properly raise factual issues which could not be decided on this application.

The right to determine whether a motion picture is indecent, immoral or sacrilegious is vested solely and exclusively in the Education Department of the State. Complete regulations for review and licensing are provided by statute (Education Law, §§ 120-132). This power negatives the existence of coequal powers in any municipal officer (Hughes Tool Co. v. Fielding, 188 Misc. 947, affd. 272 App. Div. 1048, affd. 297 N.Y. 1024), and a local law which purports to give such municipal officer regulatory powers as to the content of films is unconstitutional and void (Monroe Amusement Co. v. City of Rochester, 190 Misc. 360).

These simple principles dispose of the issue here and were it not for some slight confusion resulting from section 132 of the Education Law nothing more need be said. That section gives authority to the Board of Regents to enforce the provisions enacted in the legislation (Education Law, art. III, part II), but does not relieve any State or local peace officer from detecting and...