
    The People of the State of New York, Respondent, v. Thomas Drum, Appellant.
    Second Department,
    June 5, 1908.
    Crime — disorderly house — evidence.
    One employed in the management of a licensed hotel should not be convicted of keeping a disorderly house on the testimony of two policemen showing that* each took the same woman to the hotel, within a short, interval of time and. were assigned to a room, where there is nothing to show that the defendant knew that the same woman accompanied each, or that they were not man and wife.
    Evidence sufficient to show that a private house is a house of assignation may be insufficient in the case of a hotel.
    Hooker and Miller, JJ., dissented.
    Appeal by the defendant, Thomas Drum, from & judgment of the Court of Special Sessions of the Peace of the Second Division of the city of Hew York, rendered on the 21st day of February, 1908, convicting the defendant of keeping a disorderly house.
    The defendant was found .guilty under an information filed against, him by the'District Attorney of Kings county for violation of section 322 of the Penal Code in three counts, the first charging him with keeping a “house of ill fame and assignationthe second with keeping a disorderly house, and the third with keeping a house of public resort to which he invited and procured men and women to resort night and day, and there to remain “ drinking, tippling, gambling, rioting, disturbing the peace, whoring and misbehaving themselves”.
    
      John J. McGinniss, for the appellant.
    
      Peter P. Smith [John F. Clarke with him on the brief], for the respondent.
   Gaynor, J.:

The defendant is employed to assist in the management of a hotel in the borough of Brooklyn which is licensed under the Liquor Tax Law. The restaurant and dining room will seat 200 people at table, and there are 18 bed rooms upstairs. The evidence against the defendant is by two policemen. The first testifies that he came to the hotel in citizen’s clothes with a woman at about 7:30 p. m., registered with her at the desk as John Wise and wife in the presence of the defendant who was in ¡charge, and that they were assigned by him' to bed room 6, to which he conducted them; and that after staying in the room about 30 minutes he and the ■ woman went out of the hotel. Tie says the woman was not veiled. The second policeman testifies that some time before 9 p. m. the same day he registered with the same woman as William Porter and wife, in the presence, of the defendant, who assigned and conducted them to room 15. He says the woman was-, veiled, and also that she went upstairs in advance of him and was. not present when he registered. The first policeman says that he saw the second go into the hotel with the woman 15 or 20 minutes after' he came out. They and the woman were acting in concert by direction of their , captain.

The evidence was insufficient to. prove that the hotel was a disorderly house, or house of assignation. There was no evidence that ■ it was a disorderly' place, or frequented by disorderly or Vicious people, or of any unlawful doings in it. The only evidence .on the subject, which.was given by the defendant, was to the contrary.

It is an indictable offense at common law for the keéper of an' inn or hotel to refuse to receive any guest and entertain him with meals or lodging or both, and our Penal Code (§ 381) makes' it a misdemeanor to do so, without just cause -or excuse ’?. Evidence that would suffice to show that a private house was a. house df assignation might entirely fail to prove that' of a licensed inn or hotel, which is the case with-the evidence here. The keeper of an inn or hotel is bound to receive and accommodate those presenting themselves as guests at his peril. He can refuse them only for just cause or excuse. There was no evidence from which it could be found that the defendant knew that the same woman accompanied each of the policemen.. The conviction seems to have been had on the general notion of the police that it suffices that men and women received as man and wife at a hotel are not such in order to convict the proprietor, regardless of whether he knew it. If fhat Were so, the proprietors of our large hotels could be convicted of keeping houses of assignation every day. But it is hot. What was done by the police against this hotel could probably be repeated, in the case of most if not all of our hotels, fashionable or plain, high or low.

It is true that the first policeman testified in this case that he asked the defendant what name he would write in the register, and that the defendant responded “put down John Wise, nobody will be the wiser ”, and that he then took him and his woman to their bed room and told them “ to have a good time ” as he was leaving them; but this is so inherently improbable that we entertain no notion that it was credited by the trial, court.

The judgment should be reversed.

. Jenks and Eich, JJ., concurred; Hooker and Miller, JJ., dissented.

Judgment of the Court of Special Sessions reversed and new trial ordered.  