
    Joseph E. Molloy, Plaintiff, v. Joseph Coletti Defendant.
    (Supreme Court, New York Special Term,
    January, 1921.)
    Pleading — when demurrer to complaint overruled — restaurant keepers — injury to guest — when motion for judgment on the pleadings denied.
    Where in an action by one who while a guest in defendant’s restaurant was seriously injured by being struck on the head by a heavy glass water tumbler thrown by a patron of the. restaurant, the complaint alleges that defendant had notice, through the continued offensive, boisterous and unlawful conduct of the patron who threw the tumbler, a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action will be overruled, and defendant’s motion for judgment on the pleadings denied with leave to serve an answer.
    Motion for judgment on the pleadings.
    R. Waldo MacKewan, for plaintiff.
    Julius Halheimer, for defendant.
   Newburger, J.

The plaintiff alleges that while a guest in the restaurant operated and owned by the defendant he was violently struck on the head by a heavy glass water tumbler thrown by a patron of said restaurant and was seriously injured. He further alleges that it was the duty of the defendant to afford protection to him from unlawful acts of other patrons, and that notwithstanding this duty the defendant, although duly warned by the boisterous, offensive and unlawful conduct of the patron who threw the glass, made no effort to protect plaintiff. The defendant demurs to the complaint upon the ground that the same does not state facts sufficient to constitute a cause of action. In Rommel v. Schcmbacher, 120 Penn. St. 579, 582, it was held: Where one enters a saloon or tavern, opened for the entertainment of the public, the proprietor is bound to see that he is properly protected from the assaults or insults, as well of those who are in his employ, as of the drunken and vicious men whom he may choose to harbor.” As the complaint alleges that the defendant had notice through the continued offensive, boisterous and unlawful conduct of the patron who injured plaintiff, the motion for judgment on the pleadings must be denied, with costs, with leave to the defendant to answer.

Motion denied, with costs.  