BACKES, V. C.

Suit by Walter Rosenberg against Thomas V. Arrowsmith and others. On motion for preliminary injunction. Denied.

Thomas P. Fay, of Long Branch, for the motion.

BACKES, V. C. The complainant is the proprietor of the Broadway theater at Long Branch, in which he has in the past and desires in the future to exhibit moving pictures on Sundays. The defendants, the police authorities at Long Branch, have interfered with the Sunday night performances by entering the premises, reading the riot act, and removing the audience. The prayer of the bill is that the defendants "may be restrained from further molesting and interfering with your orator under pretense of enforcing the act to prevent riots, routs, and tumultuous assemblies, and from reading any proclamation under said act in the theater of your orator, and taking possession of the theater of your orator and stationing policemen at the doors of your orator's theater, under the pretense that there was a riot, rout, or tumultuous assembly."

1. Upon the application for a preliminary injunction, the complainant asked only that the police be restrained from reading a proclamation against riots to the complainant's audiences, upon the theory that, although the authorities may lawfully close the complainant's theater on Sunday, they have not the right—there being no riots—to, in the discharge of their admitted duty, read an impertinent proclamation. The statement carries with it its refutation. If, in the enforcement of the law, the police, without warrant in fact, employed an inappropriate measure which was merely incidental to a lawful act, no harm was done to the complainant of which he can complain.

2. Worldly employment or business, Interludes and plays, fiddling or other music, for the sake of merriment on Sunday, are forbidden by our vice and immorality act (C. S. 5712), and one who maintains a place in which the law is thus habitually violated is guilty of keeping a disorderly house. State v. Diamant, 73 N.J.L. 131, 62 Atl. 280; State v. Martin, 77 N.J.L. 652, 73 Atl. 548, 24 L. R. A. (N. S.) 507, 134 Am. St. Rep. 814, 18 Ann. Cas. 986.

Conducting a moving picture show is undoubtedly "worldly employment or business" interdicted by the statute. A moving picture show perhaps may come within the definition of interludes and plays, but this need not be decided. A moving picture show and the accompanying music are inhibited by the act. The act excepts "works of necessity and charity from its operation." The complainant claimed to come within this exemption, because, as he alleges, the proceeds of a certain performance are to be donated by him to charity, and asked that as to this particular exhibition an injunction issue against police interference. The difficulty with this position is that the statute permits works of charity, and does not exempt prohibited acts merely because the proceeds or results may be devoted to charity. If the meaning of the statute were as the complainant contends, then any licensed saloon keeper could defy the Sunday selling law by offering to give the proceeds of his sales to the poor.

3. Leave was granted to the complainant to renew his application, and he now cites the case-note to Delaney v. Flood, in 2 L. R. A. (N. S.) 678. The opinion and the argument in the note do not advance his plaint. The attitude of the complainant and the rights which he seeks to vindicate here cannot be looked upon with favor by a court of equity. To grant him the relief he asks would assist him in carrying on an unlawful business. High on Injunctions, § 9.

The writ is again refused.