The plaintiff brings this action to recover damages for personal injuries sustained by her in consequence of the falling of a stairway in a grand stand which the defendant had erected upon its grounds in the city of Buffalo, and which it had leased to the Press Cycling Club for the 4th of July, 1895.
The complaint contains but a single count, and consequently if the plaintiff’s recovery is to be sustained it must be solely upon the theory which lies at the foundation of her action, and which is, that the grand stand in question was so defectively constructed by the defendant as to render it unsafe for the purposes for which it was "designed, in consequence of which it became a public nuisance.
The evidence given in support of this contention tends to prove that the bearing pieces of the structure were insufficiently nailed, and that there was an unnecessary number of notches for bearing purposes in the joists which tended in some degree to lessen their supporting capacity. This evidence, while it may. not bo absolutely convincing -in its character, is probably sufficient to support the verdict of the jury, and it must consequently be regarded as conclm sive upon the question of defective construction.
Conceding, therefore, for the purpose of this review, that the grand stand was improperly constructed, the one vital question which presents itself for our consideration is, does this fact, in the absence of any allegation of negligence or of the proof of other delictum, establish the plaintiff’s right to recover ?
There was no attempt made upon the trial to prove that the defendant or any of its officers knew, or had reasonable cause to suppose, that the structural weakness pointed out by the plaintiff’s witnesses existed. On the contrary, it was - undisputed that the grand stand was erected by a builder of experience, and under the personal supervision of a competent architect, who also furnished 'the plans therefor.
Moreover, it was made to appear that the structure had been, used *336for several seasons; that at times a much larger number of persons had occupied it than upon the occasion when the plaintiff received her injury,. and that if any defect or weakness really existed, experience and use had not developed the same. Nevertheless, the learned trial justice instructed the jury that if the stand was improperly constructed the defendant was l-iable, whether it had knowledge of that fact or not, and he also refused to charge in response to a request of the defendant’s counsel that the defendant could only be held liable in the event that the jury should find that when the lease was made to the Press Cycling Club the structure was dangerous for the purpose for which it • was leased, and that the defendant knew, or had reason to know, that fact.
The theory thus adopted by the learned trial court in its disposition of the case would undoubtedly have been the correct, one had the plaintiff occupied the grand stand by invitation of, and for a compensation paid to, the defendant. For in these circumstances the invitation would carry with it an implied assurance, upon which the plaintiff and all others similarly situated might have relied, that the structure was entirely safe for the purpose for which it was designed* and if, in point of fact, it was so insecurely and improperly constructed as to render it unsafe, the law would regard it as a nuisance. for the creation of which the defendant could not escape liability by insisting that it had no knowledge of its actual condition. This was the rule laid down in the English case of Francis v. Cockrell (L. R. [5 Q. B.] 501), and it is one worthy of the recognition which it has received in this country, because it is founded in common sense.' But the difficulty which I encounter in adopting the theory of the trial court is that the undisputed facts of the case do not, in my opinion, admit of the application of this rule.
The plaintiff, at the time of the accident* was not occupying this grand stand by the defendant’s permission.. She was there upon the invitation of the Press Cycling Club, the defendant’s lessee. In no view of the case, therefore, can it be said that there was any privity of contract between • her and the defendant; and, while it is true, that the premises, including the grand stand in question, were ■ designed as a place of public amusement, and were, doubtless, leased by the defendant to the Press Cycling C^b with full knowledge that they were to be used, for that purpose, still, these facts do not, *337in my opinion, establish an implied covenant or furnish any assurance, as between this defendant and the plaintiff, that the demised premises were fit for the particular purpose for which the tenant' intended to use them. (Thomp. Neg. 323.)
It may be safély assumed that while the lessee was in possession' the defendant was divested of all control over the demised premises, and, consequently, if the former had permitted the grand stand to become 'packed with spectators far beyond its capacity, or to an extent incompatible with personal safety, the defendant would have been powerless to prevent it, and this circumstance of itself, in my opinion, furnishes a sufficient reason why- no liability should attach to the lessor, in the absence of negligence or other delictum.
It was said in the case of Edwards v. N. Y. & H. R. R. Co. (98 N. Y. 245) that “ if one builds a house for public amusements or entertainments, and lets it for those purposes', knowing that it is - so imperfectly and carelessly built that it is liable to go to pieces in the ordinary use for which it was designed, he is .liable to the persons injured through his cárelessness. And this rule of responsibility goes far enough for the protection of lessees and of the public generally. It is but a just- and reasonable application of the maxim sic utere tuo ut alienum non laedas. It imposes liability upon the landlord for his delictum, and the tenant is also liable, not only for his negligence, but also upon the authority of the case of Francis v. Cockrell, by virtue of an implied contract which he makes with all the persons whom, for a compensation, he invites or induces to enter his-building to witness public entertainments given therein, by him dr under his supervision. A rule- which would -place a greater respon-' sibility upon a grantor or upon a landlord while out of possession and deprived of the control of his premises, would,-as stated in many cases, lead to much injustice, embarrassment and inconvenience. ,There is no case which holds that the negligence of a landlord is to ' be inferred simply from the fact that..a structure which he lets breaks" down. It may break down under such circumstances that the inference of negligence is irresistible and may properly be drawn, but' the facts must show that he knew, or had reason to know, that the structure was dangerously weak and imperfect. * . * *
' “ But where the landlord has created no nuisance, and is guilty of' *338no willful wrong or fraud or culpable negligence, no case can be found imposing any liability upon him for any injury suffered by any person occupying or going upon the premises during the term of the demise; and there is no distinction stated in' any authority between cases of a demise of dwelling houses and of buildings to be used for public purposes. * * * ”
It is insisted, however, that the doctrine of this case is in conflict with that laid down in the earlier case of Swords v. Edgar (59 N. Y. 28), where it was held that the lessors of a pier were guilty of non-feasance or misfeasance in having leased their premises while in a defective and dangerous condition. It is. not to be denied that there is some force in this contention, for in reviewing the decision in the Swords Gase (supra) the Court of Appeals referred to it as one which “ Was made against the dissent of three judges, and after overruling several cases decided in courts of high authority in this country and England.” (Edwards v. N. Y. & H. R. R. Co., supra.)
But even in that case the learned judge who wrote the opinion appears to- have laid great stress upon the fact that the lessors leased the pier with knowledge of its condition, for he says: “ There is no suggestion in the case of want of knowledge on their part of its actual condition when leased by them. And the facts of the case are such that they are chargeable with knowledge of its. actual dangerous state.” (59 N. Y. 39.)
The doctrine of the Edwards case was reiterated in Wolf v. Kilpatrick et al. (101 N. Y. 146, 152); and in a still more recent case, where the owner had leased premises upon which there existed a nuisance dangerous to the public, the trial court charged the jury that the plaintiff could not recover against the defendant unless they were satisfied by the evidence that the latter knew, or ought to have known, of the dangerous condition of his premises at the time of leasing the same, and this was held to be a correct statement of the law. (Timlin v. S. O. Co. et al., 126 N. Y. 514, 523.)
The only reason urged why a different rule should be applied to the case in hand-seems to arise out of the fact that the defendant caused this grand stand to be constructed- and it is insisted that it thereby created the nuisance, if one existed at all. Strictly speaking,' this is perhaps true, but in the peculiar circumstances of the case which have already been detailed, I am not willing to hold *339either that the structure in question was a public nuisance, or that the defendant was liable to this plaintiff for its defective construction.
It seems to me quite clear, therefore, that the learned trial justice was in error when he instructed the jury that the defendant’s liability did not depend upon its knowledge of the defects complained of, and for this reason I .think a new trial should be granted.
Judgment and order affirmed, with costs.