L. 1909, ch. 14 Equal Rights in Places of Public Accommodation, etc. § 40

to prohibit it as well as the denial of those advantages and privileges, on account of race, creed, or color, to actual applicants for them to forbid the proprietors of the enumerated places to preclude, on account of race, creed, or color, the attempts contemplated, as well as to defeat for the same reason the attempts actually made for admission."

Rule of construction.- This statute is highly penal and it must be therefore strictly construed. Burks v. Bosso, 180 N. Y. 341, 73 N. E. 58, 105 A. S. R. 762; Johnson v. Auburn, etc., Electric R. Co., 169 App. Div. 864, 156 N. Y. S. 93.

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Constitutionality. This section is constitutional as an exercise by the state of its police power over places affected with a public interest. So far as it undertakes to prescribe that the owner of a place of amusement shall not exclude therefrom any citizen by reason of race, color or previous condition of servitude, it is not an unconstitutional interference with private rights in that it restricts the owner of property in respect to its lawful use, and as to an incident which is not a legitimate matter of regulation by law. The quasi-public use to which the owner of such a place devoted his property gives the legislature a right to interfere. It was a valid exercise of the police power of the state over a subject within the cognizance of the legislature. People v. King, (1888) 110 N. Y. 418, 18 N. E. 245, 6 A. S. R. 389, 1 L. R. A. 293.

Exclusion from race meeting.- The exclusion from its races, by a racing association, of a person who has broken its rules, is not within the prohibition of this section, as such rules apply to all persons alike and make no discrimination based on race, color or creed. Grannan v. Westchester Racing Ass'n, (1897) 153 N. Y. 449, 47 N. E. 896, reversing 16 App. Div. 8, 44 N. Y. S. 790. In this connection the court said: "We think the purpose of the statute now under consideration was to declare that no person should be deprived of any of the advantages enumerated, upon the ground of race, creed or color, and that its prohibition was intended to apply to cases of that character, and to none other. It is plain that the legislature did not intend to confer upon every person all the rights, advantages and privileges in places of amusement or accommodation, which might be enjoyed by another. Any discrimination not based upon race, creed or color does not fall within the condemnation of the statute. Neither the statute authorizing the holding of races or race meetings, nor the rules of the jockey club, made any such distinction, as the penalties for a breach of the rules of the club or of the usages of the turf are applicable to all alike."

Exclusion from theater.- At the common law a theater, while affected by a public interest, which justified licensing under the police power or for the purpose of revenue, is in no sense public property or a public enterprise. It is not governed by the rules which relate to common carriers or other public utilities. The proprietor does not derive from the state the franchise to initiate and conduct it. His right to and control of it is the same as that of any private citizen in his property and affairs. He has the right to decide who shall be admitted or excluded. His rights at the common law, in the respect of controlling the property, entertainments, and audience, have been too recently determined by us to be now questionable. Section 40 modifies this common-law right of a proprietor of a theater to the extent of preventing him from excluding from it a person upon the ground of race, creed or color. But he is not prevented from excluding a person on other grounds, as that he is a dramatic critic. Woollcott v. Shubert, 217 N. Y. 212, 111 N. E. 829. This was an appeal from a portion of an order of the Appellate Division of the Supreme Court of the First Department (see 155 N. Y. S. 1150 mem.) affirming an order of the Special Term granting defendants' motion for judgment on the pleadings. The plaintiff appealed by permission, and the Appellate Division certified the following question: "Does the complaint state facts sufficient to constitute a cause of action?" The appeal was

§ 40 Equal Rights in Places of Public Accommodation, etc. L. 1909, ch. 14

affirmed, the Court of Appeals holding that the question certified should be answered in the negative. The complaint alleged that the defendants controlled and conducted many theaters; that the plaintiff gained his livelihood as the dramatic critic on the staff of the New York Times; that he wrote, and the New York Times published, a legitimate and proper criticism of one of the productions controlled by the defendants; that it displeased the defendants, and therefore they excluded the plaintiff from one of their theaters, refused to permit him to enter it upon the same terms as the general public, and threatened to exclude him from all their theaters. The complaint demanded a judgment permanently restraining the defendants from continuing the acts complained of. In 90 Misc. 474, 154 N. Y. S. 754, the same case was before a judge at Special Term, the question in issue being whether an injunction would lie pending the determination of the case, restraining the defendants from carrying out their threat to eject the plaintiff from their theaters. It was held that it would, as the case fell within the equitable jurisdiction of the court; but on appeal to the Appellate Division of the Supreme Court (see 169 App. Div. 194, 610, 154 N. Y. S. 643) the order of the judge at Special Term granting an injunction pendente lite was reversed on the ground that the remedy for the violation of the statute having been prescribed, that remedy was exclusive and relief in equity was not obtainable.

A regulation by the owners of a theater whereby they refuse admission to persons buying tickets on the sidewalk is reasonable and not a violation of this section. Collister v. Hayman, (1905) 183 N. Y. 250, 76 N. E. 20, 111 A. S. R. 740, 5 Ann. Cas. 344, 1 L. R. A. (N. S.) 1188.

Refusal to sell or furnish theater seats to colored person.- Refusal to sell seats in a theater to a colored person, when they had been sold to previous purchasers, is not a violation of this section. Hull v. Eighty-sixth Street Amusement Co., (1913) 144 N. Y. S. 318. Said the court: "The complaint alleges that the defendant denied plaintiff the full enjoyment of the privileges of defendant's theater because of his color, and refused to sell him a ticket which would permit him to witness from seats in the first balcony or orchestra of the theater the entertainment being given therein. The uncontradicted evidence shows that plaintiff asked for 'seats,' and at the time he made this request the 'seats' had been sold and were actually occupied by previous purchasers. This evidence does not show a violation of the Civil Rights Law referred to above, and is insufficient to establish a cause of action."

Refusal to allow a colored person to occupy a seat in a theater which she has purchased is a discrimination because of color, and it is immaterial that a seat is offered her in another part of the theater. "In the case at bar," said the court, in reaching this conclusion, "the defendant through its agents sold to the plaintiff a ticket entitling her to a seat in the orchestra circle. This ticket constituted the evidence of her right to occupy such seat and was an assurance to her on the part of the defendant that she .could witness the performance in such theater in the seat designated upon the ticket which was sold to her, and she was entitled to view the performance from that seat without interference because of her race, creed or color. She was entitled to the seat which she purchased unless by her own personal misconduct it became necessary in the reasonable conduct of the defendant's business to eject her from the theater. But it appears in this case and the inference is quite strong that after she entered the theater for the purpose of taking her seat she was twice called to the box office and there informed that she must occupy another seat in the theater or leave it for the sole reason that she was a negress. This action on the part of the defendant's employees, as it seems to me, comes within the condemnation of the statute above quoted." Joyner v. Moore-Wiggins Co., (1912) 152 App. Div. 266, 136 N. Y. S. 578, affirmed (1914) 211 N. Y. 522.

L. 1909, ch. 14 Equal Rights in Places of Public Accommodation, etc.

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8 40

The proprietor of a theater is not liable where it is shown that he, personally, had not authorized the exclusion of the plaintiff, a negress, but that the plaintiff was excluded by an employee in violation of the rules of the theater, which customarily permitted negroes to enjoy accommodations therein. Thomas v. Williams, (1905) 48 Misc. 615 mem., 95 N. Y. S. 592. Exclusion from dancing pavilion.- A dancing pavilion in an amusement park maintained by an electric railroad company to which an admission fee is charged is not a place of public accommodation, resort or amusement," where no public exhibition of dancing is given, but those present personally participate, and a colored person who is refused admission, especially if he tenders no admission fee, is not deprived of any right accorded by section 40. Johnson v. Auburn, etc., Electric R. Co., 169 App. Div. 864, 156 N. Y. S. 93, wherein the court said: "The question, therefore, is whether this dancing room or pavilion was at the time plaintiff applied for admission a place of public accommodation, resort or amusement' within the intent and purpose of the statute. If at the time plaintiff applied for admission there had been in progress or about to be given a public exhibition of dancing furnished by defendant for the entertainment of those admitted to witness it, then I think the statute entitled plaintiff to be admitted as one of the audience. It was so held in reference to a skating rink in People v. King, 110 N. Y. 418, where a colored man sought admission to witness a public exhibition of skating. Plaintiff, however, did not seek admission in order to witness any public exhibition of dancing, but for the purpose of himself participating in the dancing. Was it the intent of the legislature by this statute to require the proprietor of every place where a public dance is being given to admit all persons who apply and are willing to pay the admission fee? A so-called public dance is usually a private enterprise conducted for the profit of its proprietor. It is a social meeting of the sexes for the pleasure derived from the society of those they know or whose acquaintance they there form as well as from the dancing. Its success depends largely upon bringing together people who are mutually congenial and who are willing to associate together for the time being for the pleasure they derive from each other's society and acquaintance as well as from dancing together or upon the same floor. If a proprietor of such a place may not exercise his judgment as to who to admit and who to exclude in order to secure the patronage necessary to success in such an enterprise, then it is manifest he cannot control the character of his place or its patronage. It would not be possible to regulate admission by rules applicable to all which would exclude persons of a certain degree of intoxication or condition of dress or cleanliness or standard of character or reputation in the community. It would seem, therefore, that such a business could not be carried on successfully unless the proprietor is able to discriminate according to his judgment as to persons, male and female, he is to admit to such an intimate association with each other. In none of the places of public accommodation, resort or amusement mentioned in the statute by name is there any such intimate association among the persons admitted as patrons or guests, and I think the specification of these places by name enables us to say with reasonable certainty that a dancing hall or room, which is not named, was not intended to be included under the more general words. It is not necessary to say that a place to come under the general words must in all cases be ejusdem generis of those afterward specially named, but I do say that to be covered by the general words a place not included in those afterward specially named should be one within the mischief to be remedied. In my opinion a dancing hall is not such a place; at least, it is not clear that it was so intended, and defendant should not be subjected to a penalty unless the right is clear. Moreover, if the statute can be so construed as to apply and cover this dancing pavilion, still I think plaintiff was not entitled to enforce the penalty because he did

§ 41 Equal Rights in Places of Public Accommodation, etc. L. 1909, ch. 14

not tender the admission fee. This is a penal statute, and must be strictly construed in favor of defendant."

Bootblacking stands.- A bootblacking stand is not "a place of public accommodation" within the meaning and intent of this section. Burks v.

Bosso, (1905) 180 N. Y. 341, 73 N. E. 58, 105 A. S. R. 762, reversing 81 App. Div. 530, 81 N. Y. S. 384.

What constitutes hotel.-A family hotel where the apartments are arranged in small suites differing in no essential respect from those in an ordinary apartment house, and where the apartments are rented upon annual leases and transient tenants are not solicited, is not a "hotel" within the meaning of this section. Alsberg v. Lucerne Hotel Co., (1905) 46 Misc. 617, 92 N. Y. S. 851.

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Saloons. A saloon is within the purview of this section as being a place of public accommodation." "An analysis of the statute shows that it covers conveyances on land and water, all places of public accommodation, and all places of public amusement, and in addition thereto bathhouses and barber shops, which are sui generis, and not related to the other places enumerated.

Some of the places of public accommodation, to wit, inns, restaurants, hotels, eating houses, and some of the places of public amusement, to wit, theatres and music halls, are specifically mentioned; but the enumeration of these particular places does not exclude others. The statute says all other places of public accommodation, thereby enlarging its scope and not restricting it to those enumerated. All places in a similar or like category with those named are included within the terms of the statute." Babb v. Elsinger, (1914) 147 N. Y. S. 98.

Restaurants and lunch rooms.- This section is not violated by a restaurant keeper's refusal to serve plaintiff because he wore no collar, such refusal being based upon a reasonable ground and not because of race, color or creed. Brandt v. Mink, (1902) 38 Misc. 750, 78 N. Y. S. 1109.

Refusal of guest by innkeeper.— An innkeeper is liable under this section for refusal to allow a person the privileges of a guest. Cornell v. Huber, (1905) 102 App. Div. 293, 92 N. Y. S. 434.

Refusal to exchange berth for state-room. The refusal by a steamboat company to exchange berths, bought by a negre, for state-rooms is not a discrimination because of race or color where it is shown that after his money was refunded he made no offer to pay for state-rooms. Miller v. New Jersey Steam-Boat Co., (1890) 58 Hun 424, 12 N. Y. S. 301, affirmed in (1892) 135 N. Y. 612, 32 N. E. 645.

Discrimination against unnaturalized persons.- Under L. 1895, ch. 1042, which applied only to citizens, a saloon keeper was held not liable for refusing to serve a negro because of his race and color, where it is shown that such negro was born in Africa and he made no proof that he had been naturalized. Fuller v. McDermott, (1904) 87 N. Y. S. 536.

Cited.—. This section was cited in People v. Rankin, (1915) 95 Misc. 62, 155 N. Y. S. 86.

§ 41. Penalty for violation. Any person who shall violate any of the provisions of the foregoing section, or who shall aid or incite the violation of any of said provisions shall for each and every violation thereof be liable to a penalty of not less than one hundred dollars nor more than five hundred dollars, to be recovered by the person aggrieved thereby or by any resident of this state, to whom such person shall assign his cause of action, in any court of competent jurisdiction in the county in which the

L. 1909, ch. 14 Equal Rights in Places of Public Accommodation, etc. § 41

plaintiff or the defendant shall reside; and shall, also, for every such offense be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars, or shall be imprisoned not less than thirty days nor more than ninety days, or both such fine and imprisonment.

Amended to read as above by L. 1913, ch. 265. The section before amendment read as follows: "Any person who shall violate any of the provisions of the foregoing section by denying to any citizens, except for reasons applicable alike to all citizens of every race, creed or color, and regardless of race, creed and color, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offense forfeit and pay a sum not less than one hundred dollars nor more than five hundred dollars to the person aggrieved thereby, to be recovered in any court of competent jurisdiction in the county where said offense was committed; and shall, also, for every such offense be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars, or shall be imprisoned not less than thirty days nor more than ninety days, or both such fine and imprisonment."

The section as incorporated in the Consolidated Laws was section 2 of L. 1895, ch. 1042.

Scope of former law. It seems that under the former section any person within the jurisdiction of this state might avail himself of the right of action given thereby; that the term "citizens" was not employed in further limitation of the status. Hubert v. Jose, (1912) 148 App. Div. 718, 132 N. Y. S. 811.

Choice of remedy by party injured.- A person, refused as a guest by an innkeeper, may maintain an action against the innkeeper on his common-law liability, and is not limited to bringing an action under this section. Cornell v. Huber, (1905) 102 App. Div. 293, 92 N. Y. S. 434.

Measure of damages.― Where the plaintiff, after purchasing a ticket which entitled her to admission to a bath house, was ejected by defendant's employees as the result of a dispute, damages may be awarded her for the indignity suffered and need not be limited to the price of the ticket. Aaron v. Ward, (1911) 203 N. Y. 351, 96 N. E. 736, 38 L. R. A. (N. S.) 204.

Responsibility for acts of employees.- Where it is shown that a waiter in the defendant's employ refused to serve the plaintiff because he was a negro, this gives the plaintiff a right of action against the defendant, unless the latter prove that the waiter did so in disobedience to orders given him. Hubert v. Jose, (1912) 148 App. Div. 718, 132 N. Y. S. 811.

Where negroes are excluded from a skating rink, because of their race and color, by the owner's employees but in accordance with his orders, he will be liable therefor. People v. King, (1888) 110 N. Y. 418, 18 N. E. 245, 6 A. S. R. 389, 1 L. R. A. 293.

A defendant is not liable in an action under this section where it is shown that he gave instructions to the waiter in his lunch room to serve colored persons as well as white, but that the waiter disobeyed these instructions and refused to serve a colored person. Hart v. Hartford Lunch Co., (1913) 81 Misc. 237, 142 N. Y. S. 515.

Defense in action against restaurant keeper. In an action, under this section, by a colored woman against a restaurant keeper for refusal to serve her, it was held that a claim by the defendant that he was out of food at the time would not be allowed, where it was shown that other people in the