Woollcott v. Shubert

• Decision Date: 22 February 1916
• Citation: 217 N.Y. 212,111 N.E. 829
• Parties: WOOLLCOTT v. SHUBERT et al.
• Court: New York Court of Appeals Court of Appeals

217 N.Y. 212

111 N.E. 829

WOOLLCOTT

v.SHUBERT et al.

Court of Appeals of New York.

Feb. 22, 1916.

Appeal from Supreme Court, Appellate Division, First Department,

Action by Alexander Woollcott against Lee Shubert and others. From a portion of an order of the Appellate Division (155 N.Y. Supp. 1150) affirming an order of the Special Term granting defendants' motion for judgment on the pleadings, plaintiff appeals by permission, Heard on question certified.

Question answered, and order affirmed.

The Appellate Division certified the following question:

“Does the complaint state facts sufficient to constitute a cause of action?”

The nature of the action and the facts, so far as material, are stated in the opinion.

Alfred A. Cook, New York City, for appellant.

Charles H. Tuttle and William Klein, New York City, for respondents.

COLLIN, J.

The primary question presented by the present appeal is: May the proprietor of a theater lawfully exclude from it a person upon any ground other than that of race, creed, or color? The appellant asserts that the Civil Rights Act of this state, as amended in 1913, answers the question in the negative. The respondents assert that the act forbids the exclusion upon the ground of race, creed, or color only.

The complaint alleges in effect: The defendants control and conduct many theaters. The plaintiff gains his livelihood as the dramatic critic on the staff of the New York Times. He wrote, and the New York Times published, a legitimate and proper criticism of one of the productions controlled by the defendants. It displeased the defendants, and therefore they have excluded the plaintiff from one of their theaters, and have refused to permit him to enter it upon the same terms as the general public. They have threatened to exclude him from all their theaters. Those acts of the defendants are wrongs against the plaintiff remediable at law only through a multiplicity of actions, in which the penalties recoverable would inadequately compensate him. The complaint demands a judgment permanently restraining the defendants from continuing the acts. The defendants answered the complaint and subsequently applied to the court at Special Term for an order for judgment on the pleadings. The Special Term granted the order. The Appellate Division affirmed it and granted leave to appeal from its order of affirmance to this court

[1] The acts of the defendants were within their rights at the common law. At the common law a theater, while affected by a public interest which justified licensing under the police power or for the purpose of revenue, is in no sense public property or a public enterprise. It is not governed by the rules which relate to common carriers or other public utilities. The proprietor does not derive from the state the franchise to initiate and conduct it. His right to and control of it is the same as that of any private citizen in his property and affairs. He has the right to decide who shall be admitted or excluded. His rights at the common law, in the respect of controlling the property, entertainments, and audience, have been too recently determined by us to be now questionable. People ex rel. Burnham v. Flynn, 189 N.Y. 180, 82 N.E. 169, 12 Ann. Cas. 420;Collister v. Hayman, 183 N.Y. 250, 76 N.E. 20, 1 L.R.A. (N.S.) 1188, 111 Am. St. Rep. 740, 5 Ann. Cas. 344;Aaron v. Ward, 203 N.Y. 351, 96 N.E. 736, 38 L.R.A. (N.S.) 204. Under the common law the rights of the plaintiff were not violated by the acts of the defendants.

[2] These rights were restricted by the statute of 1895 commonly known as the Civil Rights Act (Laws 1895, c. 1042). It was entitled:

“An act to protect all citizens in their civil and legal rights.”

It enacted:

“Sec. 1. That all persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating houses, bathhouses, barber shops, theaters, music halls, public conveyances on land and water, and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law and applicable alike to all citizens.

“Sec. 2. That any person who shall violate any of the provisions of the foregoing section by denying to any citizens, except for reasons applicable alike to all citizens of every race, creed or color, and regardless of race, creed and color, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offense” incur the penalties as prescribed.

We held that:

The purpose of the act was “to declare that no person should be deprived of any of the advantages enumerated, upon the ground of race, creed, or color, and that its prohibition was intended to apply to cases of that character, and to none other. It is plain that the Legislature did not intend to confer upon every person all the rights, advantages, and privileges in places of amusement or accommodation, which might be enjoyed by another. Any discrimination not based upon race, creed, or color does not fall within the condemnation of the statute.” Grannan v. Westchester Racing Ass'n, 153 N.Y. 449, 465, 47 N.E. 896, 901.

The reasons for our decision may be briefly stated: The act in its essential particulars is identical with the federal act of 1875 which was construed by the Supreme Court of the United States. Civil Rights Cases, 109 U.S. 3, 9, 3 Sup.Ct. 18, 20 (27 L.Ed. 835). The first section of the federal act is:

“That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” Act March 1, 1875, c. 114, 18 Stat. L. 335 (Comp.St.1913, § 3926).

The Supreme Court said:

“The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part. The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and theaters, but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude.”

The qualification of the general restrictive language effected by the last clause of the first section of the federal act inheres in the state act of 1895 by virtue of the last clause of its section 1, namely:

“Subject only to the conditions and limitations established by law and applicable alike to all citizens.”

The qualification is not materially changed or modified by the different wording of the two clauses. The rights conferred by the act of 1895 are expressly made subject to any conditions or limitations established by law which are applicable alike to all citizens. The act forbade that membership of any particular class of citizens should justify or permit exclusion from the enjoyment of the facilities or accommodations designated by it. Except as thus restricted, the rights of the defendants as proprietors of their theaters were those existing at the common law.

[3] The act of 1895 was placed in the Civil Rights Law (Consol.Laws, c. 6) as sections 40 and 41. In 1913 (Laws 1913, c. 265) those sections were amended to read:

“Sec. 40. All persons within the jurisdiction of this state shall be entitled to the full and equal accommodations, advantages and privileges of any place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No person, being the owner, lessee, proprietor, manager, superintendent, agent or employe of any such place, shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages or privileges thereof, or directly or indirectly publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed or color, or that the patronage or custom thereat, of any person belonging to or purporting to be of any particular race, creed or color is unwelcome, objectionable or not acceptable, desired or solicited. The production of any such written or printed communication, notice or advertisement, purporting to relate to any such place and to be made by any person being the owner, lessee, proprietor, superintendent or manager thereof, shall be presumptive evidence in any civil or criminal action that the same was authorized by...