Genesee Recreation Company of Rochester, New York, and Arthur W. Blankmeyer, Respondents, v. Hiram H. Edgerton, Individually and as Mayor of the City of Rochester, New York, and Others, Appellants

Genesee Recreation Company of Rochester, New York, and Arthur W. Blankmeyer, Respondents, v. Hiram H. Edgerton, Individually and as Mayor of the City of Rochester, New York, and Others, Appellants. Fourth Department, March 31, 1916. Municipal corporations — city of Rochester—power of mayor to issue and revoke license for moving picture show — duty to prevent exhibition in unsafe building — suit for injunction—issues of fact not • • determined on conflicting, affidavits — offense against public decency —police power — enforcement of criminal law will not be enjoined. The mayor of the city of Rochester has power to issue a license for a moving picture show and to revoke the same without notice to the licensee. Where in the opinion of the mayor the theatre for which such license has been issued is unsafe and does not comply with the law and ordinances of the city, he is not only justified in revoking the license, but it is his duty to intervene and prevent the use of the building for picture shows, irrespective of whether the revocation is effective or not. A license is no protection to an unlawful use. In a suit for an injunction to restrain said mayor from interfering with a moving picture show upon the ground that the theatre as a matter of fact complies with the legal requirements, the issue will' not be determined in advance of trial upon conflicting affidavits. It seems, that amoving picture film which purports to inculcate a great moral lesson may nevertheless offend public decency. The fact that a large number of people wish to see such film is the greater reason for preventing its exhibition where the premises are unsafe. If the mayor was guilty of an actionable wrong the remedy is at law, for equity will not enjoin the enforcement of the criminal law. Appeal by the defendants, Hiram H. Edgerton, individually and as mayor, and others, from an order of the county judge of Monroe county, entered in the office of the clerk of the county of Monroe on the 17th day of March, 1916, restraining and enjoining the defendants pendente lite from interfering with a certain moving picture show. B. B. Cunningham, for the appellants. Percival D. Oviatt and John F. Kinney, for the respondents. [MAJORITY — Kruse, P. J.:] Kruse, P. J.: The action is for an injunction to restrain the mayor and his codefendants from interfering with a moving picture show. The appeal is from a temporary injunction order granting the relief pending the action. The plaintiff Blankmeyer attempted to show a photo play in the Genesee Theatre in the city of Rochester. The theatre was leased to him hy the owner, the Genesee Recreation Company, his coplaintiff. The license for the theatre was issued to the owner and has been revoked. The county judge held that the mayor was authorized to issue the license and to revoke the same without notice to the licensee, and with that view we are in accord; but he further held that there was no punishable violation of the laws of the State nor of the building code of the city and that the license was revoked upon inadequate and but partial information, thus reaching the conclusion that Blankmeyer’s right to show under the license had not been affected, and accordingly granted the injunction order. We are of the opinion that if the mayor is right in his contention that the theatre was unsafe and its interior arrangement not in compliance with the law and the ordinances of the city, he was not only justified in revoking the license, but it was the duty of the mayor and police department to intervene and prevent the use of the building; and this is so irrespective of whether the revocation was effective or not. The license would not protect such unlawful use. True, the plaintiffs contend, and submit affidavits to support their contention, that the theatre is safe and up to legal requirements, but these facts are disputed by the official reports to the mayor and the affidavits submitted in opposition to the application for the injunction order. This dispute upon the facts should not he determined in advance upon these conflicting affidavits adversely to the mayor, upon whom the duty is imposed by law to see that the laws of the State and the ordinances of the city are executed and enforced. (Charter of the City of Rochester [Laws of 1907, chap. 755], § 47.) It is contended that the revocation was arbitrary, tyrannical and unreasonable, and based upon false information; that while the license was revoked ostensibly because the building was unsafe, it was in fact safe and that the real reason for the revocation was the unfounded contention by the mayor that the picture play was indecent. Blankmeyer swears in his moving affidavit that the play inculcates a great moral lesson, has received the support of the highest medical and sociological men of the country, and that there is an overwhelming demand by the citizens of the city to see the play. Even though the picture inculcates such a lesson, it does not necessarily follow that the exhibition may not offend against public decency. However desirable it may be to disseminate such knowledge, it may well be doubted that it should be done' by means of a picture show in a public playhouse. But for the purposes of this appeal we may assume that the character of the play is unobjectionable, since whatever motive may have prompted the action of the mayor in revoking the license, if the theatre was in fact unsafe and deficient so as to make its use unlawful, it should not be permitted to be used in violation of the law, and the overwhelming demand to see the picture show, if it actually exists, all the more justifies the intervention by the mayor and the police department, because the crowded condition of the theatre would necessarily enhance the danger. If an actionable wrong has been committed ■ against the plaintiffs they have an adequate remedy at law. The action of the mayor in revoking the license, if reviewable at all, should be reviewed by a direct proceeding and not by collateral attack in such an action as this. (People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187; Southern Leasing Co. v. Ludwig, 217 id. 100.) It is well settled that equity will not interfere to prevent the enforcement of the criminal law (Delaney v. Flood, 183 N. Y. 323), and if the mayor is right in his contention this injunction is of that nature. We think this case is like that of Eden Musee American Co., Ltd., v. Bingham (125 App. Div. 780), and cases there cited, where an injunction was refused, and that should he done here. The order should be reversed, with ten dollars costs and disbursements, and the application for a temporary injunction denied. All concurred. Order reversed, with ten dollars costs and disbursements, and application for temporary injunction denied.