Fuller v. McDermott — 87 N.Y.S. 536

Majority

p. 536

Fuller v. McDermott.

(Supreme Court, Appellate Term.

March 24, 1904.)

Headnote

1. Citizens—Civil Rights—Violation—Proof.

A negro born in Africa is not entitled to recover a penalty under Laws 1895, c. 1042 (Laws 1895, p. 974), entitled “An act to protect all citizens in their civil and legal rights,” for a saloon keeper’s refusal to serve him with a glass of beer in a saloon because of his race and color, without proof 'that he was a citizen, either native or naturalized.

Appeal from Municipal Court, Borough of Manhattan, Eleventh District.

Action by William Fuller against George McDermott. From a Municipal Court judgment dismissing the complaint, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.

Wilford PI. Smith, for appellant.

Josiah T. Newcomb, for respondent.

This action was brought to recover a penalty under chapter 1042 of the Laws of 1895, entitled “An act to protect all-citizens in their civil and legal rights.” Laws 1895, p. 974. The plaintiff is a negro of African descent, and was born in Africa. His contention is that the defendant violated the statute by refusing to serve him with a glass of beer at a liquor saloon in the city of New York because of his race and color. At the trial the complaint was dismissed. The plaintiff did not plead or prove that he was a citizen, either native or naturalized. This was essential to his cause of action.

The judgment should be affirmed, with costs. All concur.