
    Nathan Weiner, Appellant, v. Stephen J. Scherer, Respondent.
    (Supreme Court, Appellate Term,
    June, 1909.)
    Negligence — Acts or omissions constituting negligence — Use of land, buildings and other structures — Licensees.
    The proprietor of a moving picture show is liable for injuries sustained by one who has paid his admission fee and taken a seat given him by an usher, in consequence of people falling upon him from' a balcony which, though it may have been sufficient for ordinary use, was crowded by many more people than were provided with seats who, by pressing against the balcony rail, caused it to give way or bulge so that people fell through it.
    Appeal by the plaintiff from a judgment of the.Municipal Court of the city of New York, second district, borough of Manhattan, dismissing the complaint.
    Moses N. Schleider (Abraham Oberstein, of counsel), for appellant.
    James, Schell & Elkus (Abram I. Elkus and Carlisle J. Gleason, of counsel), for respondent.
   Gildersleeve, J.

The plaintiff’s complaint was dismissed herein after he had made an offer in open court to prove the facts claimed by him to constitute a cause of action against the defendant; which facts the defendant substantially admitted to be true, but claimed that, if true, they' did not show a liability on the part of the defendant and asked for a dismissal. The facts are, therefore, undisputed. The defendant conceded that there was no contributory negligence on the part of the plaintiff. On December 12, 1908, the defendant was engaged in giving entertainments known as moving picture shows at 125 Rivington street, this city, for which he charged an admission fee. In addition to the lower floor space there was a balcony, around the front side of which there was a railing. On that day the plaintiff paid an admission fee and entered the premises for the purpose of viewing the entertainment. It was about 1:30 p. m. when he went in, and he was shown to this balcony by one of the defendant’s ushers. At this time the balcony which had a seating capacity for not more than fifty people was not fully occupied. Soon after his entrance, desiring to change his scat, he was shown to a seat on the lower floor by an usher, and took a seat in the orchestra in the fifth row from the stage and one seat west of the aisle. As he came from the balcony he observed a considerable number of people going into the balcony. Shortly after the plaintiff had been seated, the rail of the balcony gave way, and several of the people who were standing in the balcony against the rail fell, some falling upon the plaintiff, causing the injuries complained of. At the time the rail gave way there were nearly two hundred and fifty people in the balcony, of which about two hundred were standing, “ every inch of the space in the balcony being occupied as well as that of the aisle and stairway, making exit as well as entrance difficult.” The fall of the people was caused by their pressing against the rail of the balcony, which caused the rail to give way or bulge, so that the people fell through it. The law is well settled that where a complaint is dismissed every reasonable inference must be drawn in favor of the plaintiff that the evidence will warrant. It is clear that the cause of the accident was the dangerous overcrowding- of the balcony which the defendant allowed. This case seems to come well within the rule laid down in Schnizer v. Phillips, 108 App. Div. 17; in which the court said: The law is well settled in this State that where a party in possession of premises throws the same open to the public for the purpose of gain, he impliedly warrants the premises to be reasonably safe for the purposes for which they were designed; and where, as in the case at bar, the plaintiff is injured by the fall of a structure which she is using at the invitation of the person in charge, and in the manner which such person had a right to expect the same would be used, the burden of explaining the cause of the accident and showing freedom from negligence is upon the defendant.” See also Edwards v. N. Y., N. H. & H. R. R. Co., 98 N. Y. 245, 253, and Bellinger v. Broadhead, 52 Misc. Rep. 57. The respondent submits a voluminous brief and seems to have been diligent in his search for authorities, but every case cited by him is easily distinguishable from the facts in the case at bar. He says: “ Eo claim is made that the accident was caused by the number of people on the premises, and the defendant cannot be held liable upon that ground, because the accident was not caused by the number of people but by the heedless action of a small portion of that number.” This is not the fact. The defendant permitted the balcony to be taxed, not only to its entire seating capacity, but the entire space not occupied by the seated people was taken up by the standees. This balcony may have been, and probably was, sufficient to answer all the ordinary and legitimate requirements put upon it; but the negligence of the defendant is based upon the character of its use at the particular time of the accident. The defendant must -be assumed to have known the capacity of the balcony, and he had no right to permit it to become so overcrowded as to cause undue pressure upon the rail. The pressing forward of the people to view the performance w;as also to be expected, and that this would naturally be done by the standees should have been anticipated; and the admission of a much greater number of people than the balcony in ordinary use was intended to contain, with the certainty that every standee would naturally seek a position against the rail or as close to it as possible, together with the other undisputed facts shown herein, made it a question for submission to the jury or the court, and the complaint should not have been dismissed,

MacLean and Seabuby, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  