
    Sylvester Stay, App’lt, v. Charles V. Du Bois, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 6, 1893.)
    
    Civil bights—Dismissal of complaint.
    In an action against a theatrical manager for refusing admission to plaintiff, who was a colored man, the evidence as to the reason of the exclusion was conflicting, and defendant claimed that he did not have control of the admissions, the company performing having charge of the hall on that evening, and testified that he requested the door-keeper to admit the plaintiff. The court dismissed the complaint on the ground that defendant did not control the door-keeper and was not responsible for his acts. Held, error; that the questions whether defendant had released his control of the theater for that evening and whether he asked the doorkeeper to admit plaintiff depended on the testimony of defendant alone and on the question of his veracity, and on these questions plaintiff had a right to go to the jury.
    Appeal from judgment in favor of defendant, entered upon order dismissing the complaint.
    
      G. D. B. Hasbrouck, for app’lt; Brinnier & Newcomb (A. S. Newcomb, of counsel), for resp’t.
   Herrick, J.

The plaintiff brings this action against the defendant, who is the lessee of an opera house in the city of Kingston, alleging that he purchased tickets for himself and wife to attend a theatrical performance at such opera house; that on preseating himself for admission he was refused seats therein by reason of his being a colored man.

* Upon the trial there was a conflict of evidence as to the reason of his exclusion ; the defendant also claimed that he did not have control of the admissions, and that in pursuance of a contract with the company giving the performance, such company had charge of the hall that evening; and the defendant further stated that he requested the door-keeper to admit the plaintiff.

At the close of the evidence the court dismissed the complaint, saying: “ I am inclined to dismiss the complaint, on the ground that no matter what relation existed between the Tuxedo Company and the defendant, he (Du Bois) requested the manager to admit the plaintiff, which was refused. I do not know as he ought to be responsible for the wrotig done that evening.”

From which ruling the plaintiff excepted, and asked that he might go to the jury upon the question as to whether the defendant was responsible for the act of the doorkeeper, and as to whether the plaintiff was excluded from tire opera house by Mr. Du Bois, and also upon the question of fact connected with this contract between Du Bois and this company, upon the ground that certain testimony which Mr. Du Bois has sworn to in the case had been contradicted by two witnesses of veracity, and on the veracity of Mr. Du Bois and upon all the facts at issue in the case.

The court refused to permit the plaintiff to go to the jury upon such questions, and stated: “ The point upon which I dismiss the complaint is, it seems to me that the defendant did not control the doorkeeper, and was not responsible'for his acts.”

If the plaintiff was excluded from the theatre because of his color, it was in violation of § 383 of the Penal Code of the state. By that the duty was imposed upon the defendant, as the one conducting the opera house, to grant to the plaintiff the same privileges as were granted to all other citizens; and for neglect or breach of that duty, as to the plaintiff, he has a right of action, although it may be also punished criminally.

“ When a statute imposes a duty upon a public officer, it is well settled that any person having a special interest in the performance thereof may sue for a breach thereof causing him damage, and the same is true of the duty imposed by statute upon any citizen.” Willy v. Mulledy, 78 N. Y., 310-14; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec., 458.

The question whether the defendant had released his control over the opera house for the evening in question, and whether he asked the doorkeeper to admit the plaintiff, are questions that depend upon the testimony of the defendant alone, and upon the question of his veracity; upon these questions the plaintiff had a right to go to the jury. Bookheim v. Alexander, 46 St. Rep., 200, and cases cited.

I think, therefore, the trial court erred in dismissing the complaint, and that the judgment entered thereon should be reversed, and a new trial granted, with costs to abide the event.

Mayham, P. J., and Putnam, J.,- concur.  