(dissenting). I dissent. The uncontradicted evidence in this case is to the effect that plaintiff, a white man, as the guest of one Williams, a colored man, went to defendant’s restaurant to be served. At the time they entered all the guests and waiters in defendant’s restaurant were colored. As plaintiff and Williams seated themselves the head waiter said to them: “ Gentlemen, I am sorry I cannot serve you. It is against the rules of the house to serve a mixed party. ’ ’ Williams testified: ‘ ‘ They said: * * * they cannot serve a colored and white person together..” Whereupon plaintiff and Williams, after some discussion, left the premises.
The Civil Bights Law, as amended by chapter 265 of the Laws of 1913, section 40, provides that no owner of a restaurant “ shall directly or indirectly refuse, withhold from or deny to any person any of the accommodations, advantages or privileges- thereof * * * on account of race, creed or color. ’ ’ It seems to me to be clear that plaintiff was, on the occasion in question, denied the privileges of defendant’s restaurant because he was white. The defendant virtually said to plaintiff: “ If you were colored and came here with Williams you would be served, but being white, we will not serve you. ” The law naturally does not undertake to define or even to indicate which if any race or color may be regarded as superior. Its sole and manifest purpose is to prevent discrimination on that account.
*503I am of opinion that the judgment should be reversed and new trial granted, with costs to appellant to abide the event.
Judgment affirmed, with costs.