This action was brought to recover the penalty prescribed by sections 40 and 41 of the Civil Rights Law for refusal to serve a meal to respondent, a colored man, such refusal being because of his color. The actual refusal complained of was by one Carter, a waiter employed by defendant.
A number of interesting questions raised on this appeal need not be decided because of palpable error committed by the learned trial judge in refusing to charge two requests of defendant’s attorney as follows:
“ I ask your Honor to charge the jury that if Carter was instructed to serve colored persons and not to discriminate between white and colored persons, then a mistake or even a violation of the instructions would create no liability on the defendant’s part for these actions. # *
“ I ask your Honor to charge the jury that the defendant was and is not required to do more than instruct Carter in good faith to afford all persons alike free and equal accommodations and full enjoyment of *239all the facilities and privileges afforded by it to white . persons as well as negroes, and if it did this in good faith, and the jury finds it did so, the verdict must be for the defendant. ’ ’
Respondent concedes the admissibility of the uncontradicted evidence upon which these requests were based (see Westchester Co. v. Dressner, 23 App. Div. 215), but claims, on the authority of Thomas v. Williams, 48 Misc. Rep. 615, that such evidence ‘ ‘ would not be necessarily conclusive; ” but no such claim was made by appellant, nor was his request based on the conclusiveness of the evidence.
Seabuby and Page, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.