
    Eric V. Hart, Respondent, v. The Hartford Lunch Company, Appellant. Walter Hunter, Respondent, v. The Hartford Lunch Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Penalties — action to recover—• refusal of waiter in defendant’s lunch room to serve plaintiff because he was a colored man — evidence — Civil Rights Law, §§ 40, 41.
    In an action to recover a penalty under sections 40 and 41 of the Civil Rights Law for the refusal of a waiter in defendant’s lunch room to serve a meal to plaintiff because he was a colored man, a refusal to charge the jury that, if the waiter was instructed to serve colored persons and not to discriminate between white and colored persons, then a mistake or even a violation of said instruction would create no liability on defendant’s part for such action of the waiter, and also a refusal to charge, that defendant was and is not required to do more than instruct the waiter in good faith to afford all persons alike free and equal accommodations and full enjoyment of all the privileges afforded by defendant to white persons as well as negroes and that, if defendant did this in good faith and the jury so finds, its verdict must be for defendant, calls for the reversal of a judgment in favor of plaintiff where the admissibility of the uneontradicted evidence upon which said requests to charge were based is conceded.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, entered in favor of the plaintiffs upon the verdict of a jury..
    David M. Newberger, for appellant.
    George R. Simpson (Louis Susman, of counsel), for respondents.
   Bijur, J.

This action was brought to recover the penalty prescribed by sections 40 and 41 of the Civil Rights Law for refusal to serve a meal to respondent, a colored man, such refusal being because of his color. The actual refusal complained of was by one Carter, a waiter employed by defendant.

A number of interesting questions raised on this appeal need not be decided because of palpable error committed by the learned trial judge in refusing to charge two requests of defendant’s attorney as follows:

“ I ask your Honor to charge the jury that if Carter was instructed to serve colored persons and not to discriminate between white and colored persons, then a mistake or even a violation of the instructions would create no liability on the defendant’s part for these actions. # *
I ask your Honor to charge the jury that the defendant was and is not required to do more than instruct Carter in good faith to afford all persons alike free and equal accommodations and full enjoyment of all the facilities and privileges afforded by it to white . persons as well as negroes, and if it did this in good faith, and the jury finds it did so, the verdict must be for the defendant. ’ ’

Respondent concedes the admissibility of the uncontradicted evidence upon which these requests were based (see Westchester Co. v. Dressner, 23 App. Div. 215), but claims, on the authority of Thomas v. Williams, 48 Misc. Rep. 615, that such evidence ‘ would not be necessarily conclusive; ” but no such claim was made by appellant, nor was his request based on the conclusiveness of the evidence.

Seabuby and Page, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  