The dancing floor accommodated 800

agent or employé of any such place, shall di- went to the pavilion and watched the dancrectly or indirectly refuse, withhold from or ers. deny to any person any of the accommodations, to 1,000 dancers. An orchestra of seven piecadvantages, or privileges thereof, or directly or indirectly publish, circulate, issue, display, post es was maintained by the defendant and a or mail any written or printed communication, director of dancing was employed by it. Benotice or advertisement, to the effect that any fore a person would be admitted to the dancof the accommodations, advantages and privileg es of any such place shall be refused, withheld ing floor it was necessary for such person to from or denied to any person on account of obtain a button from an attendant with a race, creed or color, or that the patronage or uniform similar to the ones worn by the men custom thereat of any person belonging to or employed on the defendant's cars. purporting to be of any particular race, creed The ator color is unwelcome, objectionable or not ac- tendant sold the buttons to men for ten ceptable, desired or solicited. * A place cents each, and to women for five cents of public accommodation, resort or amusement each. within the meaning of this article, shall be never seen any one excluded from the dancing The attendant testified that he had deemed to include any inn, tavern or hotel, whether conducted for the entertainment of floor except for drunkenness or disorderly transient guests, or for the accommodation of conduct. The plaintiff and his friends had those seeking health, recreation or rest, any some conversation, and they saw in a conrestaurant, eating house, public conveyance on land or water, bathhouse, barber shop, theater spicuous place a sign reading: "Procure and music hall. your buttons from uniformed attendant." Plaintiff then with the money necessary to purchase the buttons applied for them to the attendant, and the plaintiff's testimony re lating thereto is as follows:

Any person violating the provisions of the section quoted is liable to a penalty for each and every violation of not less than $100 nor more than $500 to be recovered by the person aggrieved thereby. Civil Rights Law, § 41.

The plaintiff, a colored man, whose character and conduct would appear to have been unobjectionable, alleges that he was by the defendant denied full and equal accommodations, advantages, and privileges at a place in this state of public accommodation, resort, or amusement on the 12th day of June, 1914, and he brings this action to recover the penalty provided by statute. There is no denial of the statement that the defendant railroad company owns and maintains in connection with its trolley railroad a public park consisting of several acres of land known as Lakeside Park on Owasco Lake, near the city of Auburn. Passengers are carried by it from the city to the north side of the park. From the place where the passengers alight from its cars there is a cement walk to the lake, and at about the middle of the park there is a large building called a pavilion. The walk passes through an open part of the pavilion. In such open part of the pavilion is a fountain, and in one end of the pavilion a restaurant, and in the other end thereof a dancing floor. On the south side of the pavilion is a wide platform or veranda. There are chairs and tables on this platform and in the grounds. Swings and other places of accommodation, resort, and amusement are maintained in different places through. out the grounds. The day in question was maintained as a memorial day by the colored people in memory of a colored woman, who in her lifetime was well known in different parts of the state. Between 2 and 3 o'clock in the afternoon the plaintiff with three women friends, all young colored people, took one of the defendant's cars at Auburn for Lakeside Park. They spent most of the afternoon walking about the grounds and enjoying the various amusements and then

"I said I wanted to get some dancing buttons, and he replied, 'You don't want any dance buttons, do you?" I said, 'Yes, sir.' He said, 'I can't sell you any dancing buttons.' I said, 'What is your reason?" He said, "Those are my orders.' I said, 'From whom did you get your orders, Mr. Roseboom?" He said, 'I got my orders from the railroad company.'

[1] The jury has found, in substance, that the plaintiff on account of his being a colored man was refused equal accommodations, advantages, and privileges at a place of public accommodation, resort and amusement. We think the evidence is such as to justify its conclusion upon the facts. King, 110 N. Y. 418, 422, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389.

People v.

eration is whether the dancing floor was, un[2] The important question for our considder the circumstances described, included within the provisions of section 40 of the Civil Rights Law which we have quoted. This court has recently had the Civil Rights Law under consideration in Gibbs v. Arras Bros., 222 N. Y. 332, 118 N. E. 857. In that case the court, speaking by Judge Collin, say: "The clear intention of the Legislature is not to be defeated through interpretation."

Referring to the classification stated in the statute, the court further say:

facilities and agencies created and operated for "Those places include each of those utilities, the common advantage, aid, and benefit of the people, the denial of which to any person would be a discriminatory obstruction or deprivation in achieving prosperity, health, development, or tion is not based upon the existence of a license happiness. The existing legislative classificaor franchise from the state to the proprietor of the place or to the place itself."

The court further say:

enacting this statute that it should apply only "The Legislature clearly had in mind in to those it selected and named and to such others, if any, devoted to the general advantage, auxiliary to the prosperity, health, development, comfort, or benefit, and essential or directly or happiness of the citizen."

tract to pay for the year in question is not a "paid subscriber" under a guaranteed circulation advertising contract.

Appeal from Supreme Court, Appellate Division, Third Department.

Suits by the Cream of Wheat Company against the Arthur H. Crist Company. From an order of the Appellate Division (166 App. Div. 870, 152 N. Y. Supp. 407, 417), affirming by a divided court two judgments entered on report of referee dismissing the complaints in each case on the merits, plaintiff appeals. Reversed and rendered for plaintiff in each

case.

Rome G. Brown, of Minneapolis, Minn., for appellant. James F. Hubbell, of Utica, for respondent.

In that case it was held that a liquor saloon corresponds closely with an ordinary store or shop, and is not a place of public accommodation within the letter or spirit of the statute. We sustain the ruling in that case, but are of the opinion that the dancing floor, under the particular circumstances disclosed in this case, was a place of public accommodation, resort, or amusement. The defendant in its business as a public service corporation comes within the express language of the statute so far as it maintains a "public conveyance on land or water." The park in question was concededly maintained as a public place. It was not maintained as an independent business, but as an auxiliary to the defendant's passenger business and in connection therewith. It and the amusements afforded therein are maintained for the health, comfort, benefit, pleasure, happiness, and accommodation of the defendant's passengers. The purpose of its effort in their behalf is to increase its transportation business. It is in fact and as a matter of law an incident and auxiliary August 27, 1910, the parties entered into a thereto. By the express language of the stat-contract wherein defendant undertook to inute the bathhouses and restaurant are subject to its provision, and the other accommodations and amusements of the park, including the dancing floor, maintained as they are by the defendant as an electric railroad and public service corporation, cannot be separated therefrom and held to be an inde-by guarantee that the average circulation of pendent and private enterprise.

The judgment of the Appellate Division should be reversed, and that of the trial court affirmed, with costs in the Appellate Division and in this court.

HISCOCK, C. J., and HOGAN, CARDOZO, POUND, MCLAUGHLIN, and ANDREWS, JJ., concur.

Judgment accordingly.

(222 N. Y. 487)

HOGAN, J. The plaintiff is a manufacturer of cereal products. The defendant is engaged in the printing business and publishes a monthly magazine known as American Motherhood.

sert in a magazine published by defendant a full-page advertisement to be furnished by plaintiff during each month of the year 1911, in consideration of a stated sum to be paid therefor by plaintiff. The contract provided: "Party of the first part [defendant] does herethe above-mentioned publication shall be not less than 63,000 copies per issue for the time during which the above advertisement shall run, and it is understood and agreed that the term circulation' for the purposes above mentioned shall be construed as follows: The total number of copies of each issue of the publication above mentioned which shall be published and sold and delivered by the publishers thereof both clusive of all returns from news agencies and to paid subscribers and to news agencies, excopies given away in any manner whatsoever."

The plaintiff was by said contract at any time to be permitted access to the books of defendant to ascertain the circulation of the magazine, not oftener than twice in each

CREAM OF WHEAT CO. v. ARTHUR H. year. In the event that such examination or

CRIST CO.

(Court of Appeals of New York. Feb. 15, 1918.)

1. CONTRACTS 204-ADVERTISING-GUARANTEED CIRCULATION-"CIRCULATION."

In an action to recover rebate and cost of examination of books of publisher under an advertising contract, where circulation was less than guaranteed, it was error to determine such "circulation" by counting as paid subscribers, according to custom, those who had paid for some prior year and not dropped from list, and copies given away, where the contract specifically provided otherwise.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Circulation.]

examinations did not bear out the circulation embodied in the contract and should be found to have averaged materially less than 63,000 copies per issue during the term for which the advertising was to run, the expense of the examination was to be borne by defendant, otherwise by plaintiff. Should such examination disclose the circulation to be materially less than stated in the contract, defendant agreed to make a pro rata rebate in cash for such shortage in circulation.

About September 1, 1912, the plaintiff caused an examination to be made of the books of the defendant for the year 1911, which audit disclosed, as asserted by plaintiff, that 204-ADVERTISING "PAID the total net paid circulation per issue was A subscriber who had paid for some previ-25,975 as compared with 63,000 as provided ous year and not formally discontinued his sub- for in the contract. The rebate upon such exscription and might be liable on implied con- amination would amount to $123.14, the cost

2. CONTRACTS SUBSCRIBER."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of the examination was $326.05, making a their understanding of the provisions of the total of $749.19, and to recover that sum contract at the time of the execution of the plaintiff brought an action: same is apparent from the language employ

A second contract was entered into be-ed therein, especially when considered in retween the parties, identical in terms with the contract above referred to, save that the second contract covered the year 1912. An audit of the books of defendant was made by plaintiff between May 20 and July 1, 1913, which disclosed that the average circulation per month during the year 1912 was 27,428 instead of 63,000 as guaranteed by the contract, and by reason thereof plaintiff in the second action sought a recovery for the rebate of $328.28, and the further sum of $809.06 cost of the audit, a total of $1,137.34.

The two actions were tried together before a referee and resulted in the dismissal of the complaint in each case.

lation to the subject-matter. The parties were proficient in the business in which each was engaged. They severally understood the value of advertising and the advantages of circulation of the medium of advertisements. They met on equal footing. By the terms of the contracts defendant guaranteed that the average circulation of the publication should not be less than 63,000 copies per issue. Had the contract terminated there, the term "circulation" might be subject to construction dependent upon general custom and usage prevailing between advertiser and publisher. The parties, however, did not desire to leave the construction of the term "circulation" in doubt, and thereupon for the purpose of making definite and certain the meaning of the same and with full knowledge of the significance thereof, with a view of avoiding misunderstanding in the future, they covenanted that the term "circulation" should be construed as the total number of copies of each issue which shall be published and sold and delivered by the publisher thereof to paid subscribers and to news agencies, exclusive of all returns from news agencies and copies given away in any manner whatso

defendant was that the average number of each publication to be sold and delivered to "paid subscribers and news agencies," exclusive of copies returned or given away, should not be less than 63,000 per issue.

[1] The referee found as matter of fact that at the time the plaintiff entered into the contract there was a general usage and custom existing in this country known to plaintiff, and which prevailed among advertisers and between advertisers and publishers, to the effect that, in determining the number of subscribers to a magazine in a given year for the purpose of calculating its value as an advertising medium, the subscribers were divided into two classes, namely, paid and unpaid; that the first class or paid subscribers should and did include those who had paid their sub-ever, and the guaranty on the part of the scriptions for the year in question and also those who had subscribed and paid for some years prior to the year in question who had not discontinued their subscriptions, who had not been omitted or written off by the publishers, but to whom the publisher had regularly mailed each issue for the year in question; that the second class or unpaid subscribers included all other copies of the magazine given away in any manner whatsoever, and, as conclusions of law, that the words "paid subscribers" in said contract included the subscribers who at the time of said audit had paid their subscriptions for the year 1911 or some previous year and all subscribers who had subscribed and paid for the magazine at some time prior to 1911 and had received the issues of said magazine for the year 1911 and were legally liable by contract, express or implied, to pay the subscription price for the year 1911.

The foregoing finding of fact and the conclusion of law by reason thereof which is the basis of the decisions made in these cases discloses that the courts below ignored the definition which the parties to the contract gave to the term "circulation," and held in substance that a person who subscribed and paid for the year 1903, who had not discontinued his subscription and whose name had not been written off by the publisher and to whom the publisher had regularly mailed a copy of each issue, was a "paid subscriber" for the year 1912, and embodied in the term "circulation." Such construction is unwarranted. The intention of the parties and

When the contracts were made, the plaintiff was privileged to and did insist that for the consideration to be paid by it the minimum circulation should be measured by the number of magazines sold and delivered to paid subscribers and to news agencies, with the exclusions noted, and the defendant acceded to that proposition.

It was found by the referee that the average number per issue for 1911 for which the subscription price had been paid at the time of the audit (about September 1st after the expiration of the year) was 25,975, and for 1912 at the time of the audit 27,428, and as claimed by plaintiff. The price of the magazine was $1 per year. An examination of the books of defendant disclosed that the gross income from the sale of the magazine in 1911 was $29,903.05, and in 1912 $28,255.66, which included sums paid down to the date of the audit made in each year respectively, a most material fact which seemingly was disregarded. The slight excess in each year over the number of subscriptions found was accounted for by the auditors, and the record discloses that plaintiff's audit was eminently fair, and that no attempt was made to secure a narrow or unreasonable enforcement of the contract; that allowances were made by the auditors for not only every subscriber who paid during the year 1911, but down to the time of the

audit months later, and who had paid his sub- [ that the films were to be "rushed" because they scription for the full year or merely a portion thereof, and like allowance was made for old subscribers long delinquent who paid during the year or down to the time of the audit. Plaintiff therefore not only made allowance for paid-up subscribers, but included therein paying subscribers down for several months after the close of the year for which the audit was made. The number thus estimated on the trial by plaintiff was as stated found by the referee and was undisputed on the trial.

[2] A suggestion that an individual resident in some distant state who had paid a subscription for some year, 10, 20, or more years before the year 1911, and had not formally and expressly discontinued his subscription, might be liable under an implied contract, although not paying for said year, and be considered under the contracts in question a "paid subscriber" for the year 1911, and for as many years thereafter as a publisher may keep his name on a mailing list and fail to mark it off his books, does not merit acquiescence on our part.

were to be exhibited, was insufficient basis to such shipment, liable for special damages, conrender the express company, upon delay in sisting of the receipts or profits which the consignee lost by nonattendance in his theater owing to failure to receive the films in time to exhibit them as advertised, based on evidence that the pictures shown by the films were of an unusually attractive character, had been specially advertised to be exhibited, and would have been attended by a large number of persons paying a higher price than was charged for admission to the pictures necessarily shown in lieu of those shipped; such notification not being sufficient to show that such damages were within the reasonable contemplation of the parties.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Louis H. Chapman against James C. Fargo. From a judgment (165 App. Div. 950, 150 N. Y. Supp. 1080), affirming judgment of the Trial Term on verdict for plaintiff, defendant appeals. Reversed, and complaint dismissed.

See, also, 160 App. Div. 913, 145 N. Y. Supp. 1117.

William Townsend, of Utica, for appellant. William F. Dowling, of Utica, for respondent.

The conclusion reached by us is not in conflict with Newhall v. Appleton, 114 N. Y. 140, 21 N. E. 105, 3 L. R. A. 859. Had the contract in the Appleton Case been specific, and defined the term “each and every order," it would be more similar to the contracts under consideration here and another question than the one there considered would be sub-press company in Troy for shipment to the mitted for consideration.

The contracts in question were definite and unambiguous. The parties thereto expressed in plain terms the undertaking of each party and the mutual intention existing between them. It is not for the courts to make new contracts between them or to give their express language a strained or unreasonable construction.

The judgments herein should be reversed, and judgment in action No. 1 ordered in favor of plaintiff against the defendant for the sum of $749.19, with interest thereon from the time of the commencement of the action, together with costs in all courts, and in action No. 2 judgment is ordered in favor of plaintiff against defendant in the sum of $1,137.34, and interest thereon from the date of the commencement of the action, with costs in the courts below.

HISCOCK, C. J., and CHASE, CARDOZO, POUND, MCLAUGHLIN, and ANDREWS,

JJ.,

concur.

Judgments accordingly.

(223 N. Y. 32)

CHAPMAN v. FARGO.

DELAY IN SHIPMENT

1

HISCOCK, C. J. This action was brought to recover damages for unreasonable delay in the transportation of moving picture films which were delivered to the defendant ex

plaintiff in Utica. There was evidence from which the jury could find as it did that there was unreasonable delay in the delivery of the films, and plaintiff has been allowed to recover as damages the receipts or profits which it is claimed he would have realized from the exhibition of said films, if they had been delivered with reasonable promptness, through the attendance at his theater at a certain rate of admission of many people who stayed away or paid a lower rate of admission because said pictures were not exhibited. Upon this appeal the important propositions urged upon our attention are: First, that plaintiff was not entitled to recover such loss of profits; and, second, that even if he was, no competent evidence was given of their amount. In view of our conclusions in respect of the first proposition, it will be unnecessary to discuss the second one. The first step in the discussion will be

to state the circumstances under which the films were received by defendant and the contract thereby established between him and the plaintiff, as such circumstances could be found most favorable to the plaintiff.

It appears, and I think defendant must be (Court of Appeals of New York. Feb. 26, 1918.) charged with knowledge of the fact, that CARRIERS 105(2) films are sent out for use by a central comDAMAGES. Notification of express company, upon deliv-pany, and that after having been exhibited ery to it for shipment of moving picture films, in one place they are shipped on for use in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

In the case of property like films intended for use as distinguished from sale or some other purpose, the ordinary damages would be the loss of rental value caused by the delay and perhaps certain incidental expenses if incurred. Sutherland on Damages, vol. 4, § 905; Hutchinson on Carriers, vol. 3, § 1373.

another one. These particular films were been within the contemplation of the parties originally sent out by a company in New when the shipment was made. Sutherland York, and after they had been exhibited in on Damages (4th Ed.) vol. 3, §§ 903, 905, 913; Troy they were brought to the defendant's Hutchinson on Carriers (3d Ed.) vol. 3, § office in that city for shipment to plaintiff. 1369; Harvey v. Conn., etc., R. R. Co., 124 They were inclosed in "a leather grip or Mass. 421, 26 Am. Rep. 673; Pilcher v. Cent. handbag" which was not the regulation of Ga. Ry. Co., 155 Ala. 316, 46 South. 765; package in which films were generally ship- L. & N. R. R. Co. v. Mink, 126 Ky. 337, 103 ped. There were pasted on the handbag la- S. W. 294; St. Louis & S. F. R. R. Co. v. bels which contained respectively the word Farmers' Union Co., 34 Okl. 270, 125 Pac. "Rush," the name of the company which 894. originally shipped out the films, and the words "Motion Picture Films" or "Films." The messenger who brought the package to the express office told the agent "that the package contained films and should be rushed on account of showing; something to that effect; I won't say that those were the exact words." The package was directed to "L. H. Chapman, Toy Novelty Company," in Utica. In addition evidence was given by the plaintiff that the pictures shown by these films were of an unusually attractive character; that he had especially advertised their exhibition on Christmas day in a theater owned by him, and also tending to show, as claimed, that if the films had been delivered with reasonable promptness his theater would have been attended by a large number of persons paying each ten cents for admission, whereas, owing to the failure of delivery and inability to exhibit the pictures from these particular films, a large number of persons stayed away from his theater entirely, and a large number of others only paid an admission fee of five instead of ten cents. On this evidence, as already stated, plaintiff was permitted to recover for loss of profits in the operation of his theater.

When we analyze this evidence for the purposes of this case we see that at the time of shipment the defendant knew that the package contained films which were to be exhibited, and that in general terms he was notified that transportation was to be "rushed" because they were to be exhibited. There was no notice, express or implied, that plaintiff was to be the exhibitor; that he owned a theater for which exhibition of said films on an important holiday like Christmas had been specially advertised; that said films possessed such particular attractiveness for the public that they could not be readily replaced; and that on failure by defendant to deliver them by a certain day it would be necessary to close the theater or supply their place with less attractive and less profitable ones. This notice was not enough to lay the basis for the present recovery.

Defendant, knowing that the package contained films which were passed around a circuit for exhibition and having been notified to "rush" them on that account, is chargeable with such damages as would naturally result from unreasonable delay, and which, therefore, must be deemed to have

But before defendant could be held to special damages, such as the present alleged loss of profits on account of delay or failure of delivery, it must have appeared that he had notice at the time of delivery to him of the particular circumstances attending the shipment, and which probably would lead to such special loss if he defaulted. Or, as the rule has been stated in another form, in order to impose on the defaulting party a further liability than for damages naturally and directly, i. e., in the ordinary course of things, arising from a breach of contract, such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting. Generally, notice then of any special circumstances which will show that the damages to be anticipated from a breach would be enhanced has been held sufficient for this effect.

He

In this case it was not a sufficient basis for recovery for loss of special profits that the carrier should know of the general purposes for which the films were to be used. should have been notified of the particular circumstances and purpose already recited making important their delivery by a certain day and which have been made the foundation of the special damages which have been allowed. In effect he should have been made aware that plaintiff had made certain plans based upon the arrival of the films at a certain time, and that in case of nonarrival these plans would be destroyed in all probabilitý, causing certain damages. Hutchinson on Carriers, vol. 3, § 1369; Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487; Ill. Cent. R. R. Co. v. Nelson, 139 Ky. 449, 97 S. W. 757; Express Co. v. Jennings, 86 Miss. 329, 38 South. 374; Higgins v. U. S. Express Co., 83 N. J. Law, 398, 85 Atl. 450; Thomas, etc., Mfg. Co. v. Wabash, etc., R. R. Co., 62 Wis. 642, 22 N. W. 827, 51 Am. Rep. 725; Simpson v. London & N. R. R. Co., 1 Q. B. 274; Hadley v. Baxendale, 9 Exch. R. 341; Gee v. Lancashire, etc., Ry.