
    The Fire Department of the City of New York, Resp’t, v. James M. Hill, Impl’d, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 20, 1891.)
    
    Theatres—Building law—Liability of lessee.
    The lessee of a theatre is liable for a violation of the building laws in allowing persons to stand in the passageways, although he has let the privilege of giving performances to others, where it appears that he furnished the usual attaches, though they were subject to the orders of the person giving the performance, and that he was about the place and had promised a week previous to the violation complained of that he would look out thereafter and comply with the law. „
    Appeal from judgment eighth district court
    
      W. L. Findlay, for resp’t; Foster & Stephens, for app’lt.
   Daly, Ch. J.

It was established by satisfactory evidence that there was a violation of the building laws on the occasions complained of in the defendant’s theatre, in that the passageway at the back of the auditorium was so crowded with people standing there while the performance was in progress that persons going to or from their seats had to crowd through. There were from forty to fifty persons so standing. The question is, whether the defendant Hill is responsible for this violation of the statute. He was lessee of the theatre, but had let to Joseph Brooks, manager of Miss Dauvray, the privilege of giving performances therein for four weeks, and it was during such performances that the violations complained of took place.

Under his agreement with Brooks, the defendant was to furnish, among others, “the usual attaches before and behind the curtain, * * * ticket sellers, ticket takers and necessary ushers.” The person who admitted the bearers of tickets which did not entitle the holders to seats, and the persons whose duty it was as ushers to seat the audience and conduct them through the aisles and passageways, were employed and paid by defendant. It was shown, however, that they were subject to the orders of Brooks’ representatives, who had the right to admit whomsoever they pleased to the theatre, and that the persons who crowded the passageways on the occasion in question were admitted by the latter.

It was, however, made clear by the evidence that the defendant was frequently in and about the theatre during these performances, and knew that the passage-ways were obstructed by persons standing therein; and having had his attention called to the violation of the law by officers of the department, had promised to look out thereafter and comply with the law. This was a week before September 30th, the day of the violation for which the penalty was inflicted, and the defendant was in and about the theatre after making such promise. Nevertheless, the infraction of the law continued.

From the defendant’s promise it is to be inferred that he had the power to correct the abuse complained of; and it is quite certain that by the terms of his lease to Brooks he did not, in any way, relinquish his possession and control of the premises. He merely let to Brooks the privilege of giving performances, and therefore parted with no rights beyond those necessary to the full exercise of the privilege. His reserved rights included ample power to see that no violations of law were committed in the theatre. If he had had no notice that such violations were committed during the period covered by his lease to third parties, he might not be responsible; but after notice it was his duty to issue such instructions and take such measures to see that they were carried out as would be reasonable under the circumstances. Failing in that the justice was authorized to find that he allowed the passage "way to be obstructed by persons standing therein as complained of, and the judgment for the penalty should not be disturbed.

We held in the case of The Fire Department v. Stetson, 14 Daly, 125; 6 N. Y. State Rep., 255, that to recover the penalty given for the violation of the act prohibiting the standing of persons in the aisles or passage-ways of a theatre during a performance, it is not necessary to prove that the manager of the theatre knew that any persons were standing in the passage-way at the time in question, or that he gave permission to any one to stand in the passage-way. That a number of tickets for a performance were sold by his agents after they knew the seats in the house were filled is .sufficient proof to sustain a judgment in the absence of evideiice that such sale was in opposition to the defendant’s wishes.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.  