GAYNOR, J.:
The defendant is employed to assist in the management of a hotel in the borough of Brooklyn which is licensed under the Liquor Tax Law. The restaurant and dining room will seat 200 people at table, and there are 18 bed rooms upstairs. The evidence against the defendant is by two policemen. The first testifies that he came to the hotel in citizen's clothes with a woman at about 7:30 P.M., registered with her at the desk as John Wise and wife in the presence of the defendant who was in charge, and that they were assigned by him to bed room 6, to which he conducted them; and that after staying in the room about 30 minutes he and the woman went out of the hotel. He says the woman was not veiled. The second policeman testifies that some time before 9 P.M. the same day he registered with the same woman as William Porter and wife, in the presence of the defendant, who assigned and conducted them to room 15. He says the woman was veiled, and also that she went upstairs in advance of him and was not present when he registered. The first policeman says that he saw the second go into the hotel with the woman 15 or 20 minutes after he came out. They and the woman were acting in concert by direction of their captain.
The evidence was insufficient to prove that the hotel was a disorderly house, or house of assignation. There was no evidence that it was a disorderly place, or frequented by disorderly or vicious people, or of any unlawful doings in it. The only evidence on the subject, which was given by the defendant, was to the contrary.
It is an indictable offense at common law for the keeper of an inn or hotel to refuse to receive any guest and entertain him with meals or lodging or both, and our Penal Code (§ 381) makes it a misdemeanor to do so, "without just cause or excuse". Evidence that would suffice to show that a private house was a house of assignation might entirely fail to prove that of a licensed inn or hotel, which is the case with the evidence here. The keeper of an inn or hotel is bound to receive and accommodate those presenting themselves as guests at his peril. He can refuse them only for just cause or excuse. There was no evidence from which it could be found that the defendant knew that the same woman accompanied each of the policemen. The conviction seems to have been had on the general notion of the police that it suffices that men and women received as man and wife at a hotel are not such in order to convict the proprietor, regardless of whether he knew it. If that were so, the proprietors of out large hotels could be convicted of keeping houses of assignation every day. But it is not. What was done by the police against this hotel could probably be repeated in the case of most if not all of our hotels, fashionable or plain, high or low.
It is true that the first policeman testified in this case that he asked the defendant what name he would write in the register, and that the defendant responded "put down John Wise, nobody will be the wiser", and that he then took him and his woman to their bed room and told them "to have a good time" as he was leaving them; but this is so inherently improbable that we entertain no notion that it was credited by the trial court.
The judgment should be reversed.
JENKS and RICH, JJ., concurred; HOOKER and MILLER, JJ., dissented.
Judgment of the Court of Special Sessions reversed and new trial ordered.