Waldo
v.
Seelig

This case is not covered by Casetext's citator
Supreme Court, Appellate TermJan 1, 1911
70 Misc. 254 (N.Y. Misc. 1911)
70 Misc. 254126 N.Y.S. 798

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January, 1911.

Archibald R. Watson (Herman Stiefel and William J. Millard, of counsel), for appellant.

Rogers Rogers (Gustavus A. Rogers and Saul E. Rogers, of counsel), for respondent.


This action was brought by the fire commissioner to recover from the manager of the Dewey Theatre in East Fourteenth street the penalty for allowing persons to stand in the passageways and aisles of the said theatre during a certain public performance, as provided by sections 762, 773 and 731 of the Greater New York charter.

The principal contention of the respondent is that there was no violation proved, because the places in which plaintiff's witnesses testified that persons were standing were not aisles and passageways within the intent of section 762. This contention is without merit. It is admitted that the only entrance to the main or orchestral floor was through a center door, and that persons entering this door were compelled to pass behind the rows of seats to gain the aisle on either side of said floor, which distinguished this case from Sturgis v. Grau, 39 Misc. 330, where the entrances were directly opposite each aisle, the space in the rear of the seats between the aisles being expressly reserved for standing patrons and there being no necessity or purpose to use the same as a passageway. We should not hesitate to hold that such a passageway as exists in the case under consideration was directly contemplated by section 762, had there been no construction given thereto by the court. The case of Sturgis v. Hayman, 84 N.Y.S. 126, however, is a direct decision against the respondent's contention.

In so far as the gallery is concerned, the only way a person can pass from one side to the other, without going down the stairs and crossing on the main floor and ascending the stairs, is by the passageway back of the seats. Respondent contends that, because of the fact that a person can pass from one side to the other by the use of the stairs, the space back of the seats should not be considered a passageway. To this contention we cannot assent. It was also proved that persons were allowed to stand in the said aisles of the gallery which concededly were necessary to enable patrons to make their exit.

Respondent further contends that, as he was not shown to be in the theatre at the time, and as notice of the condition was not brought to his attention by the fireman, he cannot be held liable. He was shown to be the licensee and the responsible proprietor of this theatre, and the law imposes upon him the duty of keeping the aisles and passageways of the theatre clear of spectators during the performance. It is immaterial whether he has actual personal knowledge of the condition; the knowledge of his agents and servants is his knowledge. We do not think it necessary that the fireman shall give notice to the proprietor of the violation in order that the penalty may be incurred. Section 762 provides that the penalty shall be incurred if the persons therein named shall cause or permit any person to stand or sit in the aisles or passageways "or having been so notified shall neglect or refuse * * * to cause such person or persons to forthwith vacate said aisles or passageways." Therefore, they are liable, if they cause or permit the person to occupy the prohibited space, or for refusing or neglecting to cause them to remove after notice. The evidence of respondent's own witnesses showed violations of the provisions of the statute, which the evidence of the plaintiff's witnesses clearly established. While a statute that imposes a penalty must be strictly construed, a statute such as this, which is designed to protect the lives of the patrons of the place from the dangers of panic in case of fire or other sudden disaster, by securing an unimpeded means of exit, should be rigidly enforced and the courts will not strive to find technicalities whereby its beneficent purposes may be defeated.

The judgment is reversed and a new trial granted, with costs to the appellant to abide the event.

SEABURY and BIJUR, JJ., concur.

Judgment reversed.