Plaintiff is a Hebrew white person. Defendant keeps a restaurant in Harlem where colored people are served with meals. Plaintiff went to defendant’s restaurant with a colored man for the purpose of getting a meal. The head waiter refused to serve plaintiff and his companion, alleging as a reason that it was “ against the rules of the house to serve a mixed party.” This was the only ground of objection to serving the plaintiff.
The statute is penal and must be strictly construed and the plaintiff must bring himself clearly within its terms. It cannot be extended by inference or by implication. There is nothing in the record to show *501that plaintiff was refused service contrary to section 40 of the Civil Eights Law.
There was no refusal to serve because of color or race. The plaintiff was white and his companion was colored. They were both refused service, so it could not have been on account of color. It was, as stated by the waiter, because the rule forbade serving ‘ ‘ mixed parties..”
The rule that “ mixed parties ” should not be served applied to white as well as colored. There was no discrimination as to one color in favor of the other.
The record plainly indicates that both parties would have been.served at separate tables and that plaintiff knew this and refused service at a separate table. How can it be said then that he was refused service because of his color?
The complaint alleges that plaintiff was a descendant of the Jewish or Hebrew race and that he was refused refreshment because of his race.
Plaintiff nowhere alleges in his complaint that he was refused sérvice because of his color.
At the trial, plaintiff abandoned the allegation that he was refused because he was Jew, or because of his race.
This left no sufficient allegation in the complaint to sustain his cause of action upon the ground that he was refused because of his color.
I do not think the refusal to serve ‘‘ mixed parties, ’ ’ white and colored, at the same table when there is a willingness to serve the same people at separate tables should be construed as a violation of the statute.
The rights granted to the citizen by the statute are strictly personal and the statute may only be invoked when the refusal is based upon the ground personal to the plaintiff. The plaintiff was not refused service solely upon his own color but upon the fact that his *502companion had a different color. Had the plaintiff been alone or had he separated himself from his companion he would have been served^
The judgment should be affirmed, with twenty-five dollars costs.
Delehanty, J., concurs.