Mirsky v. Adler

123 N.Y.S. 816

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 1, 1910
• Status: Published

Opinion

PER CURIAM.

The plaintiff has recovered a judgment for injuries which he claims he suffered by reason of being struck with a piece of iron alleged to have fallen from a balcony in the Grand Theater, in which the plaintiff was seated. . ■

The evidence does not establish that the theater was under the defendant’s control at the time the accident happened. To establish his case, the plaintiff relied upon a lease whereby the defendant leased the theater to a third party, reserving to himself the right to use the theater on Sundays. Upon the proof presented, the inference that the defendant was in control of the theater at the time the accident happened was not justified. In order to charge the defendant with liability, it was necessary for the plaintiff to do more than show that the defendant had the right to hold performances in the theater at the time the accident occurred.

The defendant proved that he had leased to the Windsor Theater Company the right to hold Sunday performances, and offered evidence to show that the Windsor Theater Company had possession and control of the theater on the day of the accident.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.