
    Andrew Hubert, Respondent, v. George Louis Jose, Appellant.
    Second Department,
    January 12, 1912.
    Trial — motion for nonsuit—failure to point out defect in proof—civil rights—refusal of restaurant keeper to serve negro—“citizen” defined — principal and agent — liability of restaurant keeper for act of waiter.
    A plaintiff, suing the keeper of a restaurant under the Civil Rights Law to recover the penalty for a refusal to serve him upon the ground that . he was a negro, should not he nonsuited at the close -of his case for a failure to prove his status as a “ citizen ” where the motion for a nonsuit was in general terms only and did not specify the alleged defect in proof.. Had the omission been brought to his attention the plaintiff might have supplied the proof. . .
    
      
      It seems, that section 41 of the Civil Rights Law is available to anyperson “ within the jurisdiction of this State,” and the term “citizen” is not employed in further limitation of status.
    Various meanings of the word “ citizen ” stated.
    The owner of -such restaurant is liable for the statutory penalty although he did not personally refuse to serve the plaintiff if the refusal was made by a waiter in his employ and engaged in the defendant’s business at the time.
    
      It seems, that if the waiter were acting contrary to his master’s order and without his knowledge or consent, the master might show the disobedience upon the issue as to the authority of the servant.
    Appeal by the defendant, George Louis Jose, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 7th day of April, 1911.
    
      Stephen O’Brien, for the appellant.
    
      Gates Hamburger, for the respondent.
   Jenks, P. J.:

The plaintiff recovered $150 as a penalty under chapter 1042 of the Laws of 1895, in that the defendant, the keeper of an eating house, refused to serve him upon the express ground that he was a colored man. This statute has been re-enacted in the Civil Bights Law {infra).

Two points are made against the judgment: First, it is contended that the motion to dismiss the plaintiff, made at the close of his case, should have been granted, in that there was no proof that the plaintiff was a “citizen.” The fact may be that the plaintiff was a “citizen,” and that, if his attention had been called to the omission to prove such status, he could have supplied the proof. As the motion for dismissal was in general terms only, the exception to the denial of the motion to dismiss was not well taken because the defendant did not specify the alleged defect. (Quinlan v. Welch, 141 N. Y. 158; Crapo v. City of Syracuse, 183 id. 395, 402.)

If it were necessary to consider the merits I would be inclined to think that section 41 of the Civil Bights Law (Consol. Laws, chap. 6; Laws of 1909, chap. 14) is available to anyperson “within the jurisdiction of this State,” that is, that the term “ citizens ” is not employed in further limitation of status. Section 41 but prescribes the penalty for a violation-of Section 40, which affords certain civil rights to any person within the jurisdiction of this State. No reason suggests itself why any person protected by the law should not avail himself of this penalty prescribed for an infraction of the law. The terms, employed do not require any such conclusion. McLean, J., in his dissenting opinion in Dred Scott, v. Sandford (19 How. [U. S.] 531), says: “The most general and appropriate definition of the term citizen is ‘a freeman.’” In Union Hotel Company v. Hersee (79 N. Y. 459) the court construed a provision in a contract that a certain sum be subscribed “by the citizens of Buffalo.” It said that the term “ citizens of Buffalo ” “has more than one meaning, and must be taken in the sense which best harmonizes with the subject-matter in reference to which it is used. -With what object and intention, therefore, was it introduced into the contract ? This inquiry accords with an accepted rule of interpretation, that 6 all words, whether they be in deeds of statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter or person: ’ (Bacon’s Maxims of the Law, Regula X.) By the definition usually given a citizen-is ‘an inhabitant of a city, town or place,’ and so would include every person dwelling in the place named; but it is subject to various limitations depending upon the context in which it is found. It may indicate a permanent resident, or one who remains for á time or from time to time. That it has various meanings, according to the object in view, is well illustrated by different statutes in which it appears.” Endlich on the Interpretation of Statutes says (p. 222): “So under an act which gave jurisdiction in controversies between citizens of different States, it was held that the term citizen, in that act, embraced not only those technically citizens, i. e., possessing the requisite qualifications for voting and holding real estate, but anyone who resides in, and is an inhabitant of a State.” (See, too, Judd v. Lawrence, 55 Mass. 531, 535; Sumnan v. Clark, 120 Ind. 142; Bacon v. Board of Tax Commissioners, 126 Mich. 22, 28 ; McKenzie v. Murphy, 24 Ark. 155.)

The second point made is that there was no proof of any personal refusal by the defendant. But there is no dispute that the defendant was the proprietor of the place, that the refusal was made by the defendant’s servant who was a waiter in his employ about the defendant’s business at the time, and who came forward to the plaintiff. In view of the satisfactory discussion of this point by Municipal Court Judge Freifeld, I need not discuss it at length. The principle is well expressed in George v. Gobey (128 Mass. 289). (See, too, Mechem Agency, § 745, and cases cited.) If the waiter was acting contrary to the defendant’s orders, without his knowledge or consent, not merely in a colorable way, then the defendant would be entitled to show such disobedience as relevant upon the authority of the servant to refuse the entertainment. (Westchester County v. Dressner, 23 App. Div. 215, citing Town of Kirkwood v. Autenreith, 21 Mo. App. 73.)

The judgment must be affirmed, with costs.

Burr, Thomas, Woodward and Rich, JJ., concurred.'

Judgment and order of the Municipal Court affirmed, with . costs.  