WOODWARD, J.:
The complaint clearly is an action to recover on the common-law liability of an innkeeper to one who has been refused the privileges of a guest.
The learned Special Term evidently treated it as an action for a penalty under the Civil Rights Act (Laws of 1895, chap. 1042), and disposed of it on the authority of Lewis v. Hitchcock (10 Fed. Rep. 4).
The common-law liability of an innkeeper, under the circumstances disclosed by this complaint, is fully recognized in Grinnell v. Cook (3 Hill, 485), and the subject is treated at length in People v. King ( 110 N.Y. 418 et seq.). I advise that the interlocutory judgment be reversed, with costs, and that the defendant be allowed twenty days in which to answer.
HIRSCHBERG, P.J., BARTLETT and MILLER, JJ., concurred; HOOKER, J., not voting.
Interlocutory judgment sustaining demurrer reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to answer within twenty days upon payment of costs.