Plaintiff, a colored woman, who was a citizen of the United States, brings this action against the defendants as owners and proprietors of a restaurant to recover a stautory penalty under sections 40 and 41 of the Civil Eights Law of the state. That the defendants refused to serve the plaintiff was conclusively proven. We cannot affirm this judgment without giving credence to the absurd and frivolous claim of the defendants, that the reason why they did not serve the plaintiff was that they were out of food. In view of the character of the defendants’ business, and that *38•at the time the defendants refused to serve the plaintiff there were other persons being served with food in the restaurant, and that within a few minutes thereafter a white man was served from the menu handed him, without any pretense of lack of food, we are unable to accept the excuse offered by the defendants. The statute was shown to have been violated, and the defense sought to be established was a mere pretense unworthy of belief.
Cohalan, J., concurs; Burnt, J., dissents.
Judgment reversed and new trial ordered, with costs to appellant to abide event.