[After stating the facts as above.]—In my opinion the defendants’ motion for a non-suit, made at the close of the testimony, should have been granted. The question whether or not the use made of this gallery by the tenant was reasonable and within the contemplation of the defendants, was not for submission to the jury, under the undisputed facts. It plainly appears that the balcony was built for use as boxes, and the lessee changed it to standing room for a large crowd of people. The defendants had nothing to do with this and were not legally responsible for what ensued. There was no proof that the structure was not safe for occupancy as boxes, and indeed it had before stood the test. There is a substantial difference between the requirements for such purposes and a standing room for a crowd filling every available space. Had an orchestra stand been changed to a receptacle for spectators and fallen from the overweight, the defendants would clearly not be responsible. Such a change of use would perhaps be more marked, yet no more potential, than the one in this case. The owner of demised premises is held to third persons only when they are out of repair at time of lease, in particulars which the landlord, as against third persons, is bound not to allow; but not liable in such a case, where the tenant’s use produces the injury. The principles controlling this case arc correctly stated in Edwards v. The New York & Harlem R. R. Co. (32 Supr. Ct. 635), which was based upon like facts, and some of the many adjudications are there cited.
The judgment and order should be reversed and a new trial ordered, with costs to abide the event.
Vast Brunt, J., concurred.
Judgment and order reversed and new trial ordered, with costs to abide event.