
    Park Tissue Mills, Inc., Appellant, v. American Chicle Company, Respondent, and The City of New York, Defendant.
   Judgment reversed on the law and a new trial granted, with costs to abide the event. We are of opinion that it was error to dismiss the complaint on the opening, without hearing proof; and that this case does not as a matter of law fall within the rule laid down in Kirshenbaum v. General Outdoor Adv. Co. (258 N. Y. 489)., In that case it appears that there was no covenant to repair; in this case there was such a covenant in the lease, and it must have had some purpose or meaning in respect to the liability of the landlord. It may be necessary for the plaintiff to amend and assert some theory of liability other than negligence. Before it is foreclosed as to its right to recover, opportunity to amend should be afforded, together with the right to present evidence on the subject of the relation of the parties and the circumstances surrounding the execution of the lease, so that the conflicting provisions therein may be better understood in the light of an apparent breach of the covenant to repair. Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur.  