107 Misc. 241 | N.Y. App. Term. | 1919
The plaintiff, a-young colored woman, applied to defendant’s school for tuition. Upon application to one Kane, the person-in charge of enrollments, plaintiff testified that she was refused admittance on the ground that she was a colored person.
Another point of controversy between the parties was that the plaintiff failed to prove that the defendant was not within the exception of the Civil Eights Law, namely,- that the defendant was not an institution ‘ ‘ which is in its nature distinctly private. ’ ’ Section 40 of the<Civil Eights Law (Laws of 1918, chap. 196), as amended, provides:
“All persons within the. jurisdiction of this state sliall be entitled to’the full and equal accommodations, advantages, facilities'and privileges, of any places of public accommodations, resort or amusement, subject only to the conditions and limitations, established by law and applicable alike to all persons.
The above provisions are limited by the following, exception:
“ Nothing herein contained shall be construed to include any institution, club, or place of accommodation Avhich is in its nature distinctly private. ’ ’
Apart from the fact that it AA’ould seem difficult to hold upon this record that a school Avhich concededly advertises for students upon billboards and elevated and subAvay stations throughout the. city of Nbav York, Avas of a distinctly private nature, it is clear that the burden Avas upon the defendant to prove it is within the exception of the statute if it sought to claim the benefits of such exception.
The respondent further contends that the defendant was not an educational institution registered as distinct from incorporation, under the supervision of the regents of the state of Nbav York. Upon the trial it appeared that the defendant Avas duly incorporated by the regents and had received from them a provisional charter which might be subsequently replaced by a. permanent charter. This proof was sufficient to support the plaintiff’s cause of action upon this branch of the case, since the Civil Bights Law applies to educational institutions under the supervision of the regents of the state of Ngav York, and an educational institution vrould come vrithin the supervision of the regents of the state of Nbav York, whether it AATas incorporated under the regents or registered under the regents. So far as registration is concerned, section 50 of the Education LaAv provides:
This section would seem to apply only to institutions not incorporated by the regents and that such institutions not so incorporated by the regents may upon registration have the same status as those so incorporated. It. follows that since the defendant was incorporated under the regents, it came within their supervision and the allegation by the plaintiff in her complaint that the defendant was registered under the regents was an immaterial allegation. It is also clear that so far as coming within the provisions of the Civil Rights Law is concerned, it is immaterial whether the institution has received a provisional charter or a permanent charter. For the foregoing reasons it was error to have dismissed the complaint.
Judgment appealed from should be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
Guy and Whitaker, JJ., concur.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.