Mills Novelty Co. v. Sunderman

• Citation: 193 N.E. 541,266 N.Y. 32
• Parties: MILLS NOVELTY CO. v. SUNDERMAN et al.
• Decision Date: 04 December 1934
• Court: New York Court of Appeals

266 N.Y. 32

193 N.E. 541

MILLS NOVELTY CO.

v.SUNDERMAN et al.

Court of Appeals of New York.

Dec. 4, 1934.

Action by the Mills Novelty Company against Theodore A. Sunderman, individually and as acting property clerk of the Police Department of the City of New York, and another. An order of Special Term enjoining the defendants pendente lite from it any wise preventing or interfering with the removal, shipping, or transporting from the state by plaintiff of its property was affirmed by Appellate Division (242 App. Div. 617, 271 N. Y. S. 1077), and defendants by leave appeal on certified questions.

Reversed, and motion denied, and questions answered in part.

The following questions were certified:

‘1. Does the complaint herein state a cause of action entitling the plaintiff, under the provisions of sections 877 and 878 of the Civil Practice Act, to the injunction heretofore granted?

‘2. Did the court at Special Term err in granting the injunction pendente lite under the circumstances set forth in the complaint, the moving affidavits and the affidavits read in opposition thereto?

‘3. If the plaintiff's automatic non-convertible vending machines referred to in the complaint were not unlawful under section 982 of the Penal Law of the State of New York as it stood prior to May 7, 1934, would it violate the rights of the plaintiff under section 6 of article 1 of the Constitution of the State of New York or the Fourteenth Amendment to the Constitution of the United States for the defendants to enforce against said machines section 982 of the Penal Law, as amended May 7, 1934, by Laws of 1934, c. 317 (the so-called Esquirol Act)?

‘4. The plaintiff's machines resemble a cash register with a lever on the side and in the front a column of packages of mints. Upon the deposit of a coin and the operation of the lever, a package of mints is released. In addition, the machine causes three cylinders to revolve at different rates of speed. Upon each of these cylinders are certain symbols and an incomplete sentence; the inscriptions on the three cylinders, however, when the cylinders cease to revolve and when these inscriptions are read together, form complete sentences of a humorous vein. The machines sometimes deliver metal tokens which have inscribed thereon ‘For amusement only.’ These tokens purport to have no cash or trade-in value and to be capable of use only for further amusement resulting in the humorous expressions described. In view of the statements contained in the affidavit of Deputy Police Commissioner Allen, did the court at Special Term err in issuing the injunction involved herein in the face of the provisions of section 970-a of the Penal Law of the State of New York and section 982 of the Penal Law as it stood prior to May 7, 1934?'

Appeal from Supreme Court, Appellate Division, First department.

Paul Windels, Corp. Counsel, of New York City (Paxton Blair and Alvin McKinley Sylvester, both of New York City, of counsel), for appellants.

Stuart N. Updike, of New York City, for respondent.

CROUCH, Judge.

The action was brought to enjoin the defendants ‘from in any wise preventing or interfering with the removal, shipping or transporting from this state by plaintiff’ or certain property described in the complaint as ‘coin-operated automatic merchandise vending machines.’ The essential allegations of the complaint are that plaintiff on and prior to May 3, 1934, was and now is the owner, lawfully entitled to the possession of the machines; that they were stored in a warehouse in New York City; that...