The defendants stand upon what they deem is their right to exclude the plaintiff from the theatres controlled by them when he avowedly comes, as a representative of the Hew York Times, to criticise their productions. This they deem doing business in them theatres, and they claim that theirs alone is the privilege of transacting business therein, if they choose to assert it. But they express their willingness to admit him to view their shows, if he can satisfy them that he will transact his business, so far as their plays are concerned, fairly and without injury to them investments, and they also profess their readiness to admit him to their theatres if he goes there simply for personal amusement and in no other capacity than as one of the general public. This position, it seems to'me, is untenable. Plaintiff does not do business in defendants’ theatres, in any sense of the term. His work is done after he has left the theatre, and the only difference between his subsequent comments upon the play and those of any other member of the audience is that he speaks with more authority, because of greater experience and greater knowledge, and addresses a larger section of the public. But if defendants can exclude plaintiff tinless he promises to make his criticisms match them views of their own enterprises, they can as well refuse admission *200to any person who voices a poor opinion of any of their manifold presentations. Whatever suspicion they may have as to plaintiff’s hostility toward them cannot be substantiated by the articles in evidence, which simply show that plaintiff praised the plays he thought were good and commented unfavorably on those he deemed failures or trivialities, in the expression of which views he seems always to have had muda eompawaaship.
The decision of this appeal- must turn upon the question whether defendants have the unqualified right to decide who shall be admitted to witness their productions and whether, if such right is qualified, the power to exclude extends only to cases in which the defendants have made general rules applicable to all the public alike.
The trend of the decisions establishes that at common law the proprietor of a theatre had a right to decide who should be admitted to witness the plays he saw fit to produce; that his enterprise was a private one, and that he was under no obligation to entertain the public at large, unless he saw fit to do so, but could discriminate and receive whom he pleased. (People ex rel. Burnham v. Flynn, 189 N. Y. 180; Aaron v. Ward, 203 id. 351; Collister v. Hayman, 183 id. 250.) So it was the general rule of law that a ticket of admission to a place of public amusement was but a license and revocable (Aaron v. Ward, supra; Marrone v. Washington Jockey Club, 227 U. S. 633); and the refusal to sell a ticket of admission would not create a cause of action against the proprietor. (Luxenberg v. Keith & Proctor Amusement Co., 64 Misc. Rep. 69.) Even the original Civil Rights Act (Laws of 1895, chap. 1042) contemplated and forbade only discriminations on account of race, creed or color. (Grannan v. Westchester Racing Association, 153 N. Y. 449; Aaron v. Ward, supra; Joyner v. Moore-Wiggins Co., Ltd., 152 App. Div. 266; affd., 211 N. Y. 522.) But the amendment to that act (Laws of 1913, chap. 265) radically changed its language and scope. The original act read as follows:
“ Section 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, bath-houses, barber-shops, theatres, music *201halls, 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.
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 forfeit and pay a sum not less than one hundred dollar’s nor more than five hundred dollars to the person aggrieved thereby, to be recovered in any court of competent jurisdiction in the county where said offense was committed; and shall, also, for every such offense be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars, or shall be imprisoned not less than thirty days, nor more than ninety days, or both such fine and imprisonment.”
Section 3 forbade the disqualification of any person from service on a grand or petit jury on account of race, creed or color. Sections 1 and 2 became sections 40 and 41 of the Civil Eights Law (Consol. Laws, chap. 6; Laws of 1909, chap. 14).
The amendment of 1913 left the statute in the form in which it has been quoted in the opinion of Hr. Justice Scott herein.
It will be seen that whereas sections 2 and 41 in their original form limited the violations which were penalized to those wherein the discrimination was because of race, creed or color, the amendment limits the application of these words to communications, notices or advertisements wherein the accommodations, advantages and privileges of a place of public accommodation, resort or amusement were stated to be refused, withheld from or denied to any person on account of race, creed or color, or stating that the patronage of any person was not desired thereat because of his race, creed or color. The first sentence conferring equal rights in the public places specified (which are defined in the fourth sentence of the section) is compílete in itself and under the new form of section 41 is pun*202ishable, by fine or imprisonment or both. It is detached from and nnassociated with the second sentence, and the qualifying-words “ race, creed or color ” can, it seems to me, be in no way referable thereto. This being so, the refusal to admit plaintiff to defendants’ theatres for reasons solely applicable to him and not affecting the general public was a violation of the statute. Is the plaintiff then relegated to his right to enforce the penalty provided by the statute ? I think he would be if the statutory remedy is adequate to redress his wrong. The ruló was laid down in Dudley v. Mayhew (3 N. Y. 9): “The principle that where a statute confers a right, and prescribes adequate means for protecting- it, the proprietor is confined to the statutory remedy, is conformable to the manifest intention of the Legislature in such cases, and has therefore been properly settled in the courts of England and in this country.” (See, also, Cook v. Whipple, 55 N. Y. 150; People ex rel. Hatzel v. Hall, 80 id. 117; McLean v. Myers, 134 id. 480.) It seems clear that the statutory penalty is inadequate to protect the rights conferred upon plaintiff by the statute. The defendants individually and collectively are most important personages in the theatrical world. As owners, lessees, managers and producers their activities are so widespread that if plaintiff is unable to enter their theatres and view the performances therein as a basis for his subsequent criticisms his usefulness as a critic and his ability to earn his livelihood by following such a vocation must be seriously impaired if not destroyed. It is not conceivable that even if he could continue in the employ of his paper as a theatrical critic, while only able to witness and review half of the plays produced in New York city, his salary would remain the same or his standing as a writer remain unimpaired. He shows special damage for the violation of his statutory right beyond the compensating power of the statutory penalty. The only remedy that he can have against the continued refusal by defendants to admit him to all the theatres owned or controlled by them (which they have frankly admitted is their settled policy) is by injunction. I, therefore, am in favor of the affirmance of the order appealed from.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.