Opinion
February 5, 1943.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, Second District, HAAS, J.
Llewellyn D. Simpson for appellant.
Philip F. Schneider for respondent.
While respondent claims that irrespective of the statute her common-law right was violated, she alleges a first cause of action only under the statute. In that respect her complaint is defective because there is no allegation that she was denied service because of "race, creed or color" — a limitation contained in section 40 Civ. Rights of the Civil Rights Law. ( Woollcott v. Shubert, 217 N.Y. 212.) The second cause of action, which incorporates the first, is legally insufficient because plaintiff may only recover the penalty provided by section 41. ( Carter v. Tarantelli, 259 A.D. 1068.) The cases of hotels and innkeepers relied upon by the respondent are not applicable because the complaint does not allege that the premises constituted a hotel or inn.
Order reversed, with ten dollars costs, and motion granted, with leave to plaintiff to serve an amended complaint within five days after service of order entered hereon upon payment of said costs.
McCOOK, HAMMER and ROSENMAN, JJ., concur.