Luxenberg v. Keith & Proctor Amusement Co.

Seabury, J. This action was brought to recover damages for breach of contract, and the only question presented for our determination is the measure of the damages to be awarded the plaintiff. The plaintiff purchased four tickets at the box office of the defendant’s theater. When these tickets were presented, the plaintiff and her three friends were denied admittance. The statement that the plaintiff was expelled and ejected from the theater conveys a wrong idea of what took place. The fact disclosed by the evidence is that the defendant’s agent refused to accept the tickets when they were tendered and told the plaintiff and her friends to “ get out.” Special damage was neither alleged nor proved; and the court below directed judgment for the plaintiff for two dollars, the amount of the purchase price of the tickets. Many of the authorities upon which the appellant relies are cases of common carriers and seem to me to be inappli [70] cable to the case now under consideration. In Purcell v. Daly, 19 Abb. N. C. 301, the court very clearly stated what I understand to be the correct rule applicable to this caso. The court there said: “ The theatre is owned by the defendant ; is private property; and is governed, so far as the public is concerned, by such rules and regulations as the defendant may see fit to make. It is in no sense a public enterprise, and is consequently not governed by the same rules which relate to common carriers or other public institutions of a like character.” This being so, the proprietor of a theater has a perfect right to say whom he will or will not admit to his theater; and, should any one apply at the box office of a theater and desire to purchase tickets of admission and be refused, there can be no question that he would have no cause of action against the proprietor of the theater for such refusal. And, in the same way, if tickets are sold to a person, the proprietor may still refuse admission ; in which case the proprietor would be compelled to refund only the price paid for the tickets of admission, together with such other expense as the party might have been put to, but which expense must be directly connected with the issuing of the ticket of admission. For he could not accept money for the right of admission to his theater, and then, upon refusing that admission, seek to retain possession of the price of the privilege. A theater ticket is simply a license to the party presenting the same to witness a performance to be given at a certain time; and, being a license personal in its character, can be revoked. In Collister v. Hayman, 183 N. Y. 250, the court through Judge Vann noted the legal difference between the position of a proprietor of a theatre and that of a common carrier. “A theatre,” said Judge Vann, “may be licensed like a circus, but the license is not a franchise and does not place the proprietors under any duty to the public, or under any obligation to keep the theatre open.” Again in the same opinion he points out that “ Unlike a carrier of passengers, for instance, with a franchise from, the State and hence under obligation to transport any one who applies and to continue the business year in and year out, the proprietors of a [71] theatre can open and close their place at will and no one can make lawful complaint.” These rules "were recognized in People ex rel. Burnham v. Flynn, 189 N. Y. 180, and in that case the court stated the rule of damages to be applied to a case where the purchaser of a theater ticket is denied admission in the following language : “ The holder of a ticket which entitles him to a seat at a given time in a place of amusement, being refused admission, is entitled' to recover the amount paid for the ticket, and, undoubtedly, such necessary expenses as were incurred in order to attend the performance.” There is. no suggestion in this statement that the holder of a ticket may recover damages to compensate him for the disappointment or - humiliation which he may have suffered by reason of his being wrongfully denied admission to the theater. The statement quoted above from Purcell v. Daly, not only does not contain such a suggestion, but, in positive language, expressly negatives such an inference. The ruling of the court below was correct, and the judgment should be affirmed, with costs. Judgment affirmed, with costs, with leave to appeal to the Appellate Division. Lehman, J., concurs.