This is an action upon a lease in writing and under seal made between the parties on the 6th day of January, 1910, to recover an installment of rent alleged to be due to the plaintiff thereunder. The defendant in' its answér pleaded, among other *678things, that the agreement could not be lawfully executed in that the plaintiff thereby undertook to authorize the defendant to perform acts prohibited by law.
The plaintiff was not the- owner but the lessee only of premises known as 116 and 118 East Fourteenth street,- in the borough of Manhattan, Hew York, and was in possession thereof under a lease expiring April 30, 1921. The defendant was engaged in constructing a theatre on the premises adjoining on the west and south. The agreement.recites that the defendant was “ desirous of cutting an opening or doorway through the exterior westerly wall of the premises Humber 116 East 14th Street for the purpose of providing an exit from the said theatre at the third story of said building,” and was also “desirous of obtaining the right and privilege of using the westerly stairways ” of the building "of which the plaintiff was the lessee “from the third story-to the street as a means of ingress and egress to said theatre upon the terms and conditions ” thereinafter set forth. It was then further provided that in consideration of the mutual covenants thereinafter contained the plaintiff granted to the defendant the right and privilege to so cut through said wall “for the purpose of constructing a doorway or entrance ” from the theatre, and granted to the defendant the “right and privilege of using the westerly stairways in said building as a means of ingress and egress to the said theatre through the aforesaid doorway” for its patrons, and it was further expressly provided, with respect to the use of the stairways, as follows: “ Said user to be in common with the party of the first part and other-tenants of said building.” It was further provided that the defendant was to prepare and submit to the plaintiff for approval plans and specifications and to obtain a certificate of approval" from the building department before proceeding with the work, and "was to submit to plaintiff “written plans and specifications of the manner in which it intends to cause the said stairways to be used by it hereunder to be fireproofed,” and that such plans and specifications were also to be approved in writing by plaintiff before the defendant was to be at liberty to proceed with the" work; and the defendant agreed to do the work in compliance with the rules and regulations of the board of .fire underwriters of the *679city of New York and the building department and all other municipal and State departments having jurisdiction of the same.
I am of the opinion that by this agreement the plaintiff attempted to license, authorize and instigate illegal acts, and that the lease was void. Section 109 of the Building Code of the city of New York (Code of Ordinances of the City of New York, pt. 1, chap. 15), in force at the time in question, provided, among other things, as follows: “No portion of any building hereafter erected or altered, used or intended to be used for theatrical or other purposes as in this section specified, shall be occupied or used as a hotel, boarding or lodging house, factory, workshop or manufactory, or for storage purposes, except as may be hereafter specially provided for. Said restriction relates not only to that portion of the building which contains the auditorium and the stage, but applies also to the entire structure in conjunction therewith. * * * All staircases for the use of the audience shall be inclosed with walls of brick or of fireproof materials approved by the Department of Buildings. * * * All inside stairways leading to the upper galleries of the auditorium shall be inclosed on both sides with walls of fireproof materials. ” (See Cosby’s Code of Ordinances [Anno. 1912], 230, 231, 234.) The work thus licensed violated these statutory provisions, in my opinion, in two particulars at least. The building of which plaintiff is the lessee is an old five-story building constructed in 1880, and is a loft building used partly for manufacturing purposes by the tenants, whose leases have some time to run. Although the building of which the plaintiff is the lessee was not erected for theatrical purposes, the agreement contemplated and provided for its alteration and use for theatrical purposes, because, the express terms of the Building Code embrace and relate to the exits and stairways as well as to the body of the theatre. These provisions of the Building Code clearly require that the stairways, other than those leading to the first or lower gallery and excluding the openings into the theatre and the exits at the foot, shall be inclosed with walls of brick or of fireproof material. Here, again, the agreement is in violation of the Building Code in that the plaintiff attempted to license the defendant, and exacted of the defendant an agree*680ment to afford his tenants access to the stairways, and the'right and privilege of using the same in common with the patrons and employees of the defendant.
By virtue of section 150 of the Building Code any person violating or assisting in violating any provision of the Building Code shall be- subject to penalties therein prescribed. Manifestly the plaintiff could not have been authorized by the owner of the building of-which he was the lessee to make an agreement with respect thereto that would be a violation of law.
The defendant has pleaded neither a want of consideration or a failure of consideration, nor that it has rescinded the agreement on either ground or on the ground of illegality. The respondent is, therefore, confined in its attempt to sustain the judgment to the theory that the agreement was illegal and void: But, notwithstanding the narrow limitation of the defendant’s pleading, I am of opinion that the judgment can be sustained on the ground that the contract could not be performed by the defendant without violating the law, and, therefore, the plaintiff is seeking to recover on a contract for which it attempted to give a consideration which was wholly illegal and void because prohibited by law, and it is immaterial whether either or both parties knew the law. (Burger v. Koelsch, 77. Hun, 44; Hess v. Allen, 24 Misc. Rep. 393; New York Taxicab Co. v. Hawk & Wetherbee, 68 id. 555; Labaree Co. v. Crossman, 100 App. Div. 503; Washington Life Ins. Co. v. Clason, 162 N. Y. 305, 310; Coffey v. Burke, 132 App. Div. 133.)
There was no modification of the agreement or waiver by the plaintiff or compliance on the part of the defendant with respect to the common use of the stairways, and, since the action is at law, the plaintiff’s right to maintain it depends upon the facts existing when his cause of action accrued which was on the failure of the defendant to pay the rent on demand duly made, and, therefore, I do not deem it necessary to consider the question as to whether the bringing of the action was a waiver by the plaintiff of any right on his part with respect to the use of the stairway, nor do I deem it necessary to discuss the evidence bearing on the question as to whether pi «.ns might have been made for construction work not contemplated *681by the agreement which might possibly have met with the approval of the building department, for the defendant was not at liberty under the license and grant given to materially depart therefrom, and to do so would require a further agreement between the parties.
I am of opinion, therefore, that the judgment is right and should be affirmed.
Hotchkiss, J., concurred.
Judgment reversed, with costs, and judgment ordered for plaintiff as directed in opinion, with costs. Order to be settled on notice.