The uncontradicted proof in. this record leaves no doubt that on the night of October 11, 1941, plaintiff was denied admission to defendant’s skating rink solely because of her color. She was a junior or second-year student at the Gorton High School in Mount Vernon, and a member of its Tri Phi Club, which is composed of students from all grades in the school. She sought to attend on the night mentioned because all the club members had agreed to go skating at the defendant’s rink that night; and when she arrived some of the members were already skating and some were _admitted later. When plaintiff, after tendering her admission fee, was refused admittance, her mother remonstrated with the rink’s cashier and manager, to no avail. A friend, seeing the mortification of the young girl, implored the manager to permit the girl to join her friends. He, however, remained adamant.
The majority of the court do not deny that defendant discriminated against plaintiff, and that her admission was refused because of her color. Such discrimination renders defendant liable to plaintiff for the penalty prescribed by statute. (Civil Rights Law, §§ 40, 41; Grannan v. Westchester Racing Assn., 153 N. Y. 449, 465.) Nevertheless, the majority would sustain defendant’s belated, unpleaded defense and would exonerate defendant because on the date plaintiff applied for admission she was, in fact, under sixteen years. She still lacked twenty days to her sixteenth birthday. In view of this, the majority take the position that regardless of plaintiff’s color, or the reason defendant originally gave for her exclusion, or the defendant’s ignorance of plaintiff’s age, if defendant had admitted plaintiff it would have been guilty of violating the criminal law. (Penal Law, § 484.) Based upon this premise, they accordingly conclude that no person will be permitted to enforce a cause of action for the breach of a statutory civil right when *704the granting of that right would have resulted in the violation of a criminal statute.
This conclusion is predicated upon an erroneous premise. Despite plaintiff’s actual age at the time she sought admission, defendant has failed to prove that if it had admitted plaintiff it would have violated the criminal statute. (Penal Law, § 484.) While we might overlook defendant’s failure to plead the requisite facts to entitle it to invoke this statute as a defense, we cannot overlook its failure to prove such facts at the trial. The burden rests upon it to establish any defense upon which it relies to defeat plaintiff’s cause of action.
So far as pertinent, section 484 of the Penal Law provides: “ A person who: 1. Admits to or allows to remain in any * * * skating rink, * * * any child actually or apparently under the age of sixteen years, unless accompanied by its parent or guardian or by an adult person authorized by its parent or guardian; * * * Is guilty of a misdemeanor.” When plaintiff applied for admission, defendant manifested no interest whatever in her age; and it does not appear from the record whether plaintiff appeared to be under or over sixteen years. Before defendant could be guilty of a crime under the statute (Penal Law, § 484), it would have to be shown that defendant had knowledge, actual or constructive, that plaintiff was under the age of sixteen. (Cf. James v. Metropolitan Jockey Club, Inc., 261 App. Div. 1089 [2d Dept.] ; Stenson v. Flick Construction Co., 146 App. Div. 66, appeal dismissed 203 N. Y. 553.) The record here is devoid of any facts upon which such knowledge could be predicated. In the absence of such knowledge, there would be no basis for defendant’s criminal liability.
It is difficult to read this record without concluding that the defense was an afterthought and a subterfuge in order to evade the consequences prescribed by the Legislature for a violation of plaintiff’s civil rights. The trial justice was of the same opinion. The judgment, therefore, should be affirmed.
Close, P. J., Carswell and Adel, JJ., concur with Taylor, J.; Lewis, J., dissents, with opinion, and votes to affirm the judgment.
Judgment reversed on the law, with costs, and the complaint dismissed on the law, with costs.