203 N.Y. 351 | NY | 1911
The defendant was the proprietor of a bathing establishment on the beach at Coney Island. The *354 plaintiff, intending to take a bath in the surf, purchased a ticket from the defendant's employees for the sum of twenty-five cents, and took her position in a line of the defendant's patrons leading to a window at which the ticket entitled her to receive, upon its surrender, a key admitting her to a bathhouse. When she approached the window a dispute arose between her and the defendant's employees as to the right of another person not in the line to have a key given to him in advance of the plaintiff. As a result of this dispute plaintiff was ejected from the defendant's premises, the agents of the latter refusing to furnish her with the accommodations for which she had contracted. It is not necessary to discuss the merits of the dispute or narrate its details as the questions of fact involved in that matter have been decided in plaintiff's favor by the Municipal Court, in which she subsequently brought suit, and that judgment has been unanimously affirmed by the Appellate Division. The plaintiff was awarded $250 damages against the defendant's contention that she was not entitled to any recovery in excess of the sum paid for the ticket, and the correctness of the defendant's contention is the only question presented on this appeal.
The action is for a breach of the defendant's contract and not for a tortious expulsion. It is so denominated in the complaint and was necessarily so brought as the Municipal Court has no jurisdiction over an action for an assault. It is contended for the defendant that as the action was on contract, the plaintiff was not entitled to any damages for the indignty of her expulsion from the defendant's establishment. It may be admitted that, as a general rule, mental suffering resulting from a breach of contract is not a subject of compensation, but the rule is not universal. It is the settled law of this state that a passenger may recover damages for insulting and slanderous words uttered by the conductor of a railway car as a breach of the company's contract of carriage. *355
(Gillespie v. Brooklyn Heights R.R. Co.,
It is insisted, however, that there is a distinction between common carriers and innkeepers, who are obliged to serve all persons who seek accommodation from them, and the keepers of public places of amusement or resort, such as the bathhouse of the defendant, theaters and the like. That the distinction exists is undeniable, and in the absence of legislation the keeper of such an establishment may discriminate and serve whom he pleases. Therefore, in such a case a refusal would give no cause of action. So, also, it is the general rule of law that a ticket for admission to a place of public amusement is but a license and revocable. It was so said by this court in People ex rel.Burnham v. Flynn (
Nor can I find that the decision we are making is in conflict with the authorities in this country. We have not been referred to any decision that holds in the case of a wrongful expulsion from a place of public amusement the aggrieved party is not entitled to compensation for humiliation and indignity. In the two Massachusetts *358 cases cited the actions were for assault, which of course could not be sustained if the license were revocable. Indeed the later case (McCrea v. Marsh) seems to limit the time for the exercise of the right of expulsion. They did not deal with the rule of damages. The same is true of Horney v. Nixon (supra). It dealt simply with the form of the action, which was trespass, and in the opinion it is said that the action should have been brought in assumpsit. In MacGowan v. Duff (supra) by mistake the plaintiff had been sold tickets for the wrong evening and was compelled to surrender the seats he occupied. It was held that the case did not justify an award of exemplary damages, and the learned court expressed a doubt as to the English doctrine declared in Wood v. Leadbitter (13 Mee. W. 838) that on a revocation of the license the plaintiff could only recover the amount paid. On the other hand, in Macgoverning v.Staples (7 Lans. 145) the right to revoke a license and expel from the grounds of an agricultural fair was denied. Smith v.Leo (92 Hun, 242) is the only authority to which we have been referred on the precise question before us. There the plaintiff having bought an admission to the defendant's dancing school, was admitted thereto but subsequently expelled. It was held that he was entitled to compensation for the indignity and disgrace of his expulsion.
The judgment of the Appellate Division should be affirmed, with costs.
GRAY, WERNER, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ., concur.
Judgment affirmed. *359