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May 5, 1969

208 CINEMA, INC. and Philip Steinberg, Plaintiffs,
Carl A. VERGARI, District Attorney, Westchester County, and Eric Geldart, Police Chief of the Village of Port Chester, New York, Defendants

Pollack, District Judge.

The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

The plaintiffs herein have moved by Order to Show Cause pursuant to Rule 65(a) and (b) of the Federal Rules of Civil Procedure for an order "staying the further arrests and prosecutions of the plaintiff herein until the eventual disposition of this action". This is the only relief requested or to be considered on this motion. See Rule 7(b) Fed.R.Civ.P. *fn1"

 The two plaintiffs in this case operate the Capitol Theatre in Port Chester, New York. This theatre is used primarily for the exhibition of motion pictures for profit and is owned by the corporate plaintiff, 208 Cinema, Inc.

 The individual plaintiff Philip Steinberg is the president and principal stockholder of the corporate plaintiff.

 The defendants are the District Attorney of Westchester County and the Police Chief of the Village of Port Chester, New York. Both are sued only in their official capacities.

 Jurisdiction of the Court over the subject matter according to the complaint is asserted under 42 U.S.C. § 1983, 28 U.S.C. § 1343 (Civil Rights), 28 U.S.C. § 2281 (Three-Judge Court) and 28 U.S.C. §§ 2201 and 2202 (Federal Declaratory Judgment Act). The complaint charges that the Obscenity Law of the State of New York, Penal Law, McKinney's Consol.Laws, c. 40, §§ 235.00 and 235.05, is void on its face, and as applied to the plaintiffs, in that it violates the First, Fifth, Eighth and Fourteenth Amendments to the Constitution.

 On April 22, 1969 the individual plaintiff was arrested and immediately brought before the Village Justice Court of Special Sessions, Village of Port Chester, where he was arraigned on an information charging obscenity in violation of Section 235.05 of the New York Penal Law, which reads, in pertinent part, as follows:

A person is guilty of obscenity when, knowing its content and character, he:
1. Promotes, or possesses with intent to promote, any obscene material; or
2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity.

 The arrest resulted from the execution of a search warrant issued by the Honorable George D. Burchell, County Judge of Westchester County, upon the affidavit of William H. McKenna, Senior Assistant District Attorney of Westchester County, after Judge Burchell himself had viewed two films entitled "The Girl from Pussy Cat" and "Professor Lust" and a reel of coming attractions at the theatre. In executing the warrant, law enforcement officers under the supervision of the defendants seized the two films and, in addition thereto, the lenses from both of the theatre's projectors together with advertisements and other papers. Also pursuant to the direction of the warrant, two other films entitled "The King" and "All Women Are Bad" which had been scheduled for showing the following evening, April 23, 1969, were seized, having been among those advertised in the coming attractions viewed.

 On April 25, 1969 the reel of film containing the coming attractions referred to was seized pursuant to a search warrant.

 On April 25, 1969 the matter was presented to the Westchester County Grand Jury which returned an indictment against the individual plaintiff. This indictment is pending but the filing of it is waiting the disposition of the motion before this Court.

 On April 25, 1969 the complaint herein was filed and the plaintiff's attorney, proceeding ex parte, presented for signature an order to show cause to bring on a motion for a preliminary injunction containing a provision for a temporary restraint of the defendants pending the hearing of the motion; the restraint sought was against further arrests and prosecutions. The Court struck the requested temporary stay from the order submitted and fixed the return day of the motion for the following Tuesday, April 29, 1969. The Court declined even to consider a temporary stay without notice to the defendants. Thereupon the plaintiffs' attorney undertook to give notice to the defendants or their attorneys to appear in Chambers on the following day on the application for a temporary stay.

 The plaintiffs and the defendant District Attorney appeared in Chambers by counsel. Plaintiffs' counsel stated that he was not seeking the return of the films. The Court declined to issue a temporary stay pending the hearing of the motion and directed that any change in the relief requested should be delineated in writing in the motion papers. The defendant objected to receiving mere oral notice of oral claims on plaintiffs' behalf.

 On April 29, 1969, the motion was fully argued and decision was reserved. The only additional legal paper filed by the plaintiffs was an affidavit setting forth information to show where and when the films in question had been exhibited in the State of New York and elsewhere in the United States. No expansion of the relief requested was indicated in any supplemental notice of motion.

 Plaintiffs have, as yet, made no motion for an order convening a Three-Judge Court under 28 U.S.C. § 2281. Nor do the moving papers request the return to the plaintiffs of the films and lenses seized. Accordingly, the issues that would be raised by such applications are, ...

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