People ex rel. Lemon v. Elmore

• Decision Date: 02 June 1931
• Citation: 177 N.E. 14,256 N.Y. 489
• Court: New York Court of Appeals Court of Appeals
• Parties: PEOPLE ex rel. LEMON, Dist. Atty., v. ELMORE et al.

256 N.Y. 489

177 N.E. 14

PEOPLE ex rel. LEMON, Dist. Atty.,

v.ELMORE et al.

Court of Appeals of New York.

June 2, 1931.

Proceeding by the People, on the relation of Elmer H. Lemon, District Attorney of Orange County, against Mildred Elmore and others, to restrain the use of real property as a public nuisance. From a judgment (230 App. Div. 543, 245 N. Y. S. 95), modifying and, as modified, affirming a judgment of the Special Term (135 Misc. Rep. 151, 238 N. Y. S. 197) in favor of plaintiff, cross-appeals were taken by the plaintiff and by the defendant Salvatore Caparbo.

Affirmed.

See, also, 225 App. Div. 869, 233 N. Y. S. 40.Appeal from Supreme Court, Appellate Division, Second Department.

Henry Hirschberg, of Newburgh, for appellant.

Franklin A. Schriver, Dist. Atty., of Middletown, for respondent.

LEHMAN, J.

The defendant Caparbo is the owner of premises which have been used as a house of prostitution. In an action brought pursuant to the provisions of article 17-A of the Public Health Law (Consol. Laws, c. 45), a judgment was rendered at Special Term enjoining the defendants from ‘conducting, maintaining, using, occupying or in any way permitting the use or occupancy of said premises and the building located thereon for the purpose of lewdness, assignation, prostitution, or as a disorderly house.’ In accordance with the command of the statute, the judgment directed the sheriff ‘to effectually close the building located on said premises against its use for any purpose, and to keep the same closed for a period of one year, unless sooner released as provided by law,’ and imposes a ‘tax’ of $300 upon the property.

The maintenance of a house of prostitution constitutes a public nuisance. An owner of adjoining property may complain that he has suffered special damage by the maintenance of such a nuisance which interferes with the legitimate use of his property and renders its occupation unfit or uncomfortable, and he may maintain an action in equity for an injunction. Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514. Whether in the absence of a statute an action in equity for an injunction might be maintained by a public officer in the public interest to abate such a nuisance is more doubtful. In Attorney General v. Utica Ins. Co., 2 Johns. Ch. 371, Chancellor Kent has pointed out that courts of equity have interfered only rarely and in limited classes of cases ‘to put down a public nuisance which did not violate the rights of property, but only contravened the general policy.’ The Legislature, by article 17-A of the Public Health Law, has authorized a District Attorney to bring actions to enjoin the maintenance of a house of prostitution and has directed courts of equity upon sufficient proof to issue such an injunction and to direct the closing of the building where the nuisance was maintained. The power of the Legislature to authorize or direct such an equitable action to obtain such a judgment is challenged on the ground that it violates article 1, section 2, of the Constitution providing that ‘trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.’

At common law the issues of fact upon an assize of nuisance to abate the nuisance and to recover damages were tried by a jury. So, too, were tried all actions for forfeiture. The Legislature cannot deprive a defendant of a right to a trial by jury in such actions by authorizing a court of equity to take jurisdiction. Hudson v. Caryl, 44 N. Y. 553;Colon v. Lisk, 153 N. Y. 188, 47 N. E. 302,60 Am. St. Rep. 609. That is not what the Legislature has done here. Remedy by common-law action furnished incomplete protection against injury to the public interest by the maintenance of a public nuisance. Remedy by injunction at the suit of a person who had suffered special injury in his property rights furnished more adequate protection to those rights. The Legislature has determined that similar protection should be afforded to public rights. It did not deprive a defendant of his right to a jury trial in any action where jury trials had previously been the rule. It extended an equitable remedy in a field where courts of equity had been reluctant to interpose their powers. There never had been a right to trial by jury where the remedy for a wrong was through injunction. The Constitution makes inviolable trial by jury ‘in all cases in which it has been heretofore used.’ It does not restrict the Legislature from enlarging the scope of equitable remedies or require that a defendant shall have a right to trial by jury where no such right previously existed. The provision that the court shall direct the effectual closing of the building for a year is not a forfeiture nor a penalty. It is imposed not because the owner of the premises has committed an offense, but because under his ownership a nuisance has been created by a person suffered to occupy the premises. It constitutes an appropriate means of definitely and completely ending the nuisance. Its character is established by the provision that, if the owner, by filing a bond in the value of the property, gives assurance that ‘he will immediately abate said nuisance and prevent the same from being established, or kept therein within a period of one year’ (§ 343-v), the court may, when satisfied of the good faith of the owner, cancel the order of abatement.

The same question has been presented in other jurisdictions by similar provisions in analogous statutes. The great weight of authority accords with the conclusion that an equitable remedy, provided in the public interest against the maintenance of a public nuisance, does not violate any right to a jury trial in ‘cases in which it has been heretofore used,’ even though previously the only remedy against such a nuisance was by a common-law action. To hold otherwise would in our opinion restrict the Legislature in a manner not contemplated by the framers of the state and federal Constitutions.

We are told by the defendant-appellant that decisions upholding the padlock provisions of prohibition enforcement laws rest upon special considerations peculiar to that class of cases. Duignan v. United States, 274 U. S. 195, 47 S. Ct. 566, 71 L. Ed. 996; Grosfield v. United States, 276 U. S. 474, 48 S. Ct. 329, 72 L. Ed. 670, 59 A. L. R. 620;Kling v. United States (C. C. A.) 8 F.(2d) 730, certiorari denied, 269 U. S. 587, 46 S. Ct. 203, 70 L. Ed. 426. The attempted distinction is of doubtful weight. Many other states have statutes with provisions concededly analogous to those now under consideation. Almost uniformly the courts have sustained these provisions. In some of these states the courts have held that, even without a statute, a court of equity had general power to enjoin a public nuisance. Then the contention that a Legislature may not confer or confirm such jurisdiction loses all force. People ex rel. Thrasher v. Smith, 275 Ill. 256, 114 N. E. 31, L. R. A. 1917B, 1075. Courts of equity have from ancient times exercised such jurisdiction, at least in some cases. Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205. Perhaps failure to exercise such jurisdiction, except in limited classes of cases, does not show that the courts might not, if they saw fit, exercise such jurisdiction generally. Even if the jurisdiction of courts of equity was limited, the Legislature would have power to enlarge that jurisdiction to cover those cases where remedy was otherwise inadequate. True, in Hedden v. Hand, 90 N. J. Eq. 583, 593, 107 A. 285, 290, 5 A....