Kane v. Walsh

• Citation: 295 N.Y. 198,66 N.E.2d 53
• Parties: KANE et al. v. WALSH, Fire Com'r, etc.
• Decision Date: 07 March 1946
• Court: New York Court of Appeals Court of Appeals

295 N.Y. 198

66 N.E.2d 53

KANE et al.

v.WALSH, Fire Com'r, etc.

Court of Appeals of New York.

March 7, 1946.

Appeal from Supreme Court, Appellate Divisions, First Department.

Action by Vincent J. Kane, individually and as president of the Uniformed Firemen's Association, and others, against Patrick Walsh, as Fire Commissioner and Chief of the Fire Department of the City of New York, for injunction preventing defendant from enforcing particular sections of the Rules and Regulations of the Fire Department and from making effective any disciplinary measure for violation of such sections or directives. From a judgment of the Appellate Division of the Supreme Court, 269 App.Div. 738, 54 N.Y.S.2d 703, unanimously affirming a judgment of the Supreme Court in favor of defendant entered in New York County by Wasservogel, J., upon an order of the Court at Special Term granting a motion by defendant for dismissal of the complaint, plaintiffs appeal.

Judgments modified in accordance with opinion. David A. Savage and Frank A. Rossini, both of New York City, for appellants.

Zarah Williamson, of New York City, for New York City Committee of the American Civil Liberties Union, amicus curiae, in support of appellant's position.

Ignatius M. Wilkinson, Corp. Counsel, of New York City (Seymour B. Quel and Helen R. Cassidy, both of New York City, of counsel), for respondent.

LEWIS, Judge.

Our inquiry goes to the legal sufficiency of the complaint in this action. The plaintiffs present for review a judgment entered upon an order of the Appellate Division which unanimously affirmed a judgment of Special Term dismissing the complaint upon defendant's motion under rule 106 of the Rules of Civil Practice.

In those circumstances we treat as admitted by the defendant the allegations of fact found in the complaint. Nevins, Inc., v. Kasmach, 279 N.Y. 323, 324, 325, 18 N.E.2d 294, 295. From those allegations it appears that the plaintiffs are members of the Fire Department of the City of New York and are officers of the Uniformed Firemen's Association, to which organizations reference will be made respectively as the ‘Department’ and the ‘ASSOCIATION.’ THE ASSOCIATION, COMPRIsinG more than sevEN thOusand members, represents 95% of all uniformed members of the Department. There came a time when through its officers the Association instituted a proceeding to restrain the defendant Fire Commissioner from enforcing an order issued by him on December 30, 1943, directing all members of the uniformed force to perform twenty-four extra hours of duty in every twenty days. We take judicial notice of the fact that the proceeding thus instituted terminated unfavorably to demands asserted by the Association. Matter of Kane v. Walsh, 181 Misc. 513, 48 N.Y.S.2d 367,181 Misc. 594, 48 N.Y.S.2d 370, affirmed 268 App.Div. 763, 49 N.Y.S.2d 279, affirmed 293 N.Y. 923, 60 N.E.2d 131. That litigation is alleged to have prompted statements to the press by local municipal officers concerning working conditions within the Department, the attitude and discipline of the uniformed force and accusations which are construed by the plaintiffs as having impugned the good faith and patriotism of the members of the Association during the prevalence of war conditions. At a meeting of the Association held in May, 1944, a Public Relations Committee was appointed to present to the public information concerning the working conditions of firemen within the Department and to answer the alleged accusatory statements made by municipal officers. Thereafter there was issued to the local press by the Public Relations Committee a statement setting forth the position of the members of the Association in instituting the proceeding which they had prosecuted unsuccessfully. Following the publication of that statement the defendant Fire Commissioner on May 29, 1944, directed the plaintiff, Vincent J. Kane, to make no further statements of any kind, either for publication or otherwise, concerning the members of the Association in relation to the Department, and further directed him to convey such order to all officers of the Association. The plaintiff Kane was also told by the Fire Commissioner ‘that unless his order was obeyed concerning the making of any statements that he would discipline each and every one responsible for any statement made, and would invoke the provisions contained in Rule 248 (s 248) of the Rules of the Fire Department of the City of New York.’

Section 248 of the Rules and Regulations for the uniformed force of the Fire Department provides:

‘Members shall not sanction the use of their names or photographs, in connection with any written or printed article, nor with an advertisement in any magazine or newspaper, without the written approval of the Chief of Department.

‘This rule shall not prohibit the use of photographs, in connection with a printed account of Members participating in rescue and other work at fires, or in connection with the history of Members appointed or promoted.’

The plaintiffs in the present action complain that both section 248, quoted above, and the directive issued by the defendant Fire Commissioner on May 29, 1944, are arbitrary, unreasonable, capricious and unconstitutional, and that to invoke either section 248 or the directive of May 29, 1944, will cause irreparable damage to the officers and members of the Association and will violate the rights of freedom of speech, press and petition guaranteed by the Federal and State Constitutions.

By the first alleged cause of action the plaintiffs demand judgment that the defendant Fire Commissioner, his agents and successors be ‘restrained and enjoined’ from enforcing section 248 and the directive issued by him on May 29, 1944, and from making effective against any officer or member of the Association any disciplinary measure for a violation of such section or directive.

We are persuaded that in the circumstances upon which plaintiffs base their demand for equitable relief the extraordinary remedy afforded by injunction may not be invoked. Among those allegations in the complaint deemed admitted by the defendant is the fact that by his directive of May 29, 1944, the Fire Commissioner has given notice that unless such directive is obeyed he will discipline ‘each and every one responsible’ for any statement made in violation thereof, and will invoke section 248 of the Rules and Regulations of the Fire Department. The plaintiffs have no absolute right to a mandatory injunction which is an extraordinary remedy to be granted or withheld by a court of equity in the exercise of its discretion. Lexington & Fortieth Corporation v. Callaghan, 281 N.Y. 526, 531, 24 N.E.2d 316, 318. Not every apprehension of injury will move a court of equity to the exercise of its discretionary powers. Indeed, ‘Equity * * * interferes in the transactions of men by preventive measures, only when irreparable injury is threatened, and the law does...