
    Clare F. Thomas, Respondent, v. John H. Springer, Appellant.
    Second Department,
    November 19, 1909.
    Master and servant—negligence — injury to spectator at theater — contract not creating partnership or relation of landlord and tenant — estoppel.
    An agree&ient, by which the manager of a theatrical company agrees to present a play in a certain theater owned by another person for a stipulated percentage of the gross receipts, the theater owner to furnish the scenery, equipment and regular employees of the theater, does not create a partnership so as to make the theater owner liable for the negligence of a person, ordinarily employed by him, but at the time employed and paid by the manager of the company to operate a spotlight at the performance. Under the circumstances the manager of the company is an independent contractor.
    Unless there be an agreement to share the profits as such there is no partnership. Such contract does not create the relation of landlord and tenant.
    Although the manager of the theater retained possession and control of the house, and sold the tickets of admission, he is not estopped to deny that the employees of the theatrical company were his servants.
    One person cannot be held liable for the negligence of another except where the relation of master and servant exists so that the maxim of respondeat superior applies, or where he is estopped to deny that it exists.
    ■Hirschberg, P, J., dissented.
    Appeal by the defendant, John H. Springer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2oth day of March, 1909, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 28th day of April, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      George W. Glaze, for the appellant.
    
      Rufus O. Gatlin [Isaac M. Kapper and Thomas E. Pearsall with him on the brief], for the respondent.
   Miller, J.:

The action is for negligence. The plaintiff attended a performance at a theater of which the defendant was the lessee, and was given a seat directly under a spotlight apparatus located at the rail of the top balcony. During the performance the operator of the spotlight, one Eckstein, dropped a slide and it struck the plaintiff on the head, causing, as she claims, serious and permanent injury to her nervous system. The play “ M’lle. Sally,” was being presented by the John C. Fischer Company, a corporation, pursuant to contract between it and the defendant. The contract provided that the defendant should furnish the theater, with the scenery and equipment therein, the regular employees such as stage hands, janitors, ushers, ticket sellers, doorkeepers, and orchestra,' electricians, programs, electrical current, bill posting and distributing, and regular newspaper advertising, for an entertainment to be given during the week beginning November twenty-sixth; that the John C. Fischer Company would give the performances in a proper and creditable manner, with complete cast of characters, etc., and would furnish everything necessary to that end, not supplied by the defendant, including “ calcium lights required,” and should receive in consideration therefor a stipulated percentage of the gross receipts. The John C. Fischer Company also agreed that the members of its company should abide by and conform to the rules and discipline for the government of the theater, and should pay for breakage or damage to property caused by them. Eckstein worked for the defendant during the day, but the defendant’s evidence is, and it is not disputed, that on the evening in question he was employed and paid by the John C. Fischer Company to operate the spotlight in question.

The learned trial justice charged the jury that Eckstein was not in the defendant’s employ, but that his carelessness was to be imputed to the defendant, and submitted to the jury the question whether his act in dropping the slide was negligent. The respondent insists that it was a question of fact whether Eckstein was in fact in the defendant’s employ when he dropped the slide, even assuming that the performing company was an independent contractor. But it is needless to consider that question, as it was not submitted to the jury.

There was a contract relation between the plaintiff and the defendant ; and, if Eckstein was the defendant’s servant, or if the defendant was estopped to deny that he was, the maxim respondeat superior applies, and the verdict may be sustained on the theory upon which it was submitted to the jury. Otherwise it cannot be. (For cases on the general principle, see Lewis v. Long Island R. R. Co., 162 N. Y. 52, and cases cited on page 66.) Two questions are thus presented: (1) Were the defendant and the John 0. Fischer Company copartners so that each was liable for the negligent acts of servants employed by the other ? (2) Is the defendant estopped to deny that Eckstein was his servant?

(1) The respondent asserts that the defendant and the Fischer Company were engaged in a joint adventure. Stripped of details, the contract of the Fischer Company was to present a play in the defendant’s theater for a stipulated percentage of the gross receipts, and it seems to me that the contract is precisely as though the compensation had been fixed at a definite sum. It is unnecessary to cite authority upon the proposition that the essential requisite of a copartnership is an agreement to share profits and losses as such. Here the Fischer Company was to receive a percentage of the gross receipts, not as its share of profits as such for its contribution to a joint enterprise, but as compensation for presenting a play in the defendant’s theater. It is quite true, as the respondent contends, that the contract did not create the relation of landlord and tenant. The defendant retained possession and control of the theater, but the Fischer Company was an independent contractor, not a copartner, and its servants were not his servants. The case in principle is not distinguishable from Marsh v. Hand (120 N. Y. 315), which distinguishes Bostwick v. Champion (11 Wend. 571, sub nom. Champion v. Bostwick, 18 id. 175) and Stroher v. Elting (97 N. Y. 102), relied upon by the respondent, though the distinction may be rather fine. The Bostwiok and Stroher cases were decided upon the ground that the agreement disclosed was one to share profits as such and not by way of compensation either for services, or use of property. Flo doubt, parties to a contract may be liable to third persons as copartners even though they stipulate as between themselves that that relation shall not exist, where in fact there is to be a sharing of profits as such as a return for the contribution made by each to the joint enter prise. A familiar application of that principle was made in Leggett v. Hyde (58 N. Y. 272), one of the cases relied upon in the Stroher case. But unless there is an agreement to share profits as such, the parties are not liable as copartners, and cannot be made so by styling the transaction a joint adventure.

(2) The defendant advertised himself to be the manager and proprietor of the theater. He retained the possession and control of it, invited the patronage of the public and sold them tickets for admission. Ho doubt the plaintiffs contract was with the defendant, but there is no evidence to show that he held himself out as the proprietor and manager of the theatrical company or in any way represented that the members of that company were his employees. The only proof on this head in the record is that furnished by the printed program which states that the defendant is proprietor and manager of the theater and that the John C. Fischer Company presents the play. The case is, therefore, in no respect like Hannon v. Siegel-Cooper Co. (167 N. Y. 244), relied upon by the respondent, which was decided on the doctrine of estoppel.

It follows, from what has been said, that this case falls in the class of Deyo v. Kingston Consolidated R. R. Co. (94 App. Div. 578) and Sebeck v. Plattdeutsche Volkfest Verein (64 N. J. L. 624). The defendant’s duty to the plaintiff was suggested in each of those cases. Ho doubt, the defendant would be liable to the plaintiff for his own negligence, for his own breach of duty to her ; but he cannot be held liable for the negligence of another except upon the application of the maxim respondeat superior j and, as we have seen, that may only be applied where the relation of master and servant exists or where the defendant is estopped to deny that it exists. The case of Thompson v. Lowell, etc., St. R. Co. (170 Mass. 577) was decided upon the defendant’s own negligence in failing to make the place safe to which it invited the plaintiff. Wyllie v. Palmar (137 N. Y. 248) was decided upon the application of the maxim respondeat superior, but upon the ground that the one whose negligence caused the accident was, in fact, the servant of the defendant.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Woodward, Jenks and Rich, JJ., concurred; Hirschberg, P. J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  