Majority
p. 240(74 Hun, 134.) STAY v. DU BOIS. (Supreme Court, General Term, Third Department. December 6, 1893.) Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Headnote
Practice in Civil Cases—Dismissal.In an action against the manager of a theater for refusing to admit plaintiff on the ground that he was a negro, it is error to dismiss the-complaint at the close of the evidence, where defendant testifies that he did not control the theater on that evening, but that the company-giving the performance had control of it, and that defendant requested* the doorkeeper to admit plaintiff, as it is a question for the jury whether-defendant stated the truth.
Appeal from Ulster county court.
Action by Sylvester Stay against Charles V. Du Bois to recover damages for the refusal of defendant to admit plaintiff to the opera house of which defendant was manager. From a judgment dismissing the complaint at the close of the evidence, plaintiff appeals.
Reversed.
G. D. B. Hasbrouck, for appellant.
Brinnier & Newcomb, (A. S. Newcomb, of counsel,) for respondent.
The plaintiff brings this action against the defendant, who is the lessee of an opera house in the city of Kingston,, alleging that he purchased tickets for himself and wife , to attend a theatrical performance at such opera house; that on presenting himself for admission he was refused seats therein by reason of his being a colored man. Upon the trial there was a conflict of evi
p. 241
dence as to the reason of his exclusion. The defendant also claimed that he did not have control of the admissions, and that, in pursuance of a contract with the company giving the performance, such company had charge of the hall that evening; and the defendant further stated that he requested the doorkeeper to admit the plaintiff. At the close of the evidence the court dismissed the complaint,, saying: “I am inclined to dismiss the complaint on the ground that, no matter what relation existed between the Tuxedo Company and the defendant, he (Du Bois) requested the manager to admit the plaintiff, which was refused. I do not know as he ought to» be responsible for the wrong done that evening,”—from which ruling the plaintiff excepted, and asked that he might go to the jury upon the question as to whether the defendant was responsible for the act of the doorkeeper, and as to whether the plaintiff was excluded from the opera house by Mr. Du Bois, and also upon the question of fact connected with this contract between Du Bois and' this company, upon the ground that certain testimony which Mr. Du Bois has sworn to in the case had been contradicted by two witnesses of veracity, and on the veracity of Mr. Du Bois, and upon all the facts at issue in the case. The court refused to permit the plaintiff to go to the jury upon such questions, and stated: “The point upon which I dismiss the complaint is, it seems to me that 'the defendant did not control the doorkeeper, and was not responsible for his acts.” If the plaintiff was excluded from the theater because of his color, it was in violation of section 383 of the Penal Code of the state. By that the duty was imposed upon the defendant, as the one conducting the opera house, to grant to the plaintiff the same privileges as were granted to all other citizens; and for neglect or breach of that duty, as to the plaintiff, he has-a right of action, although it may be also punished criminally, “When a statute imposes a duty upon a public officer it is well settled that any person having a special interest in the performance thereof may sue for a breach thereof causing him damage, and the same is true of the duty imposed by statute upon any citizen.” Willy v. Mulledy, 78 N. Y. 310 -314; Jetter v. Railroad Co., 2 Abb. Pr. 458 . The question whether the defendant had released his control over the opera house for the evening in question, and whether he asked the doorkeeper to admit the plaintiff, are questions that-depend upon the testimony of the defendant alone, and upon the-question of his veracity. Upon these questions the plaintiff had alright to go to the jury. Bookheim v. Alexander, (Sup.) 19 N. Y. Supp. 776 , and cases cited. I think, therefore, the trial court erred in dismissing the complaint, and that the judgment entered thereon* should be reversed, and a new trial granted, with costs to abide the event. All concur.
Cases cited
- Willy v. Mulledy 78 N. Y. 310 p. 241