hall or in controlling and managing the same. But the liability of the city has been sustained where the city has rented out the city hall building or some considerable part thereof, and the person injured had come to the building to transact business with the city's tenants.' (Little v. City of Holyoke, 177 Mass. 114, [52 L. R. A. 417, 58 N. E. 170].) The principle is further illustrated by city water systems which, like this hall, serve a dual purpose; one being governmental in supplying water through hydrants for fire protection, and the other private in supplying water for profit for the use of its inhabitants. If an individual sustains damage by reason of the negligence of the city in the operation of a plant for supplying water to its inhabitants, it, like an individual, is liable therefor. (Denning v. State, 123 Cal. 316, [55 Pac. 1000]; Esberg Cigar Co. v. Portland, 34 Or. 282, [75 Am. St. Rep. 651, 43 L. R. A. 435, 55 Pac. 9611.) On the other hand, if the damage results from the operation of the plant in the exercise of the power of the city in affording protection from fire, then the city is not accountable for such damages. (Judson v. Borough of Winsted, 80 Conn. 384, [15 L. R. A. (N. S.) 91, 68 Atl. 999].) Our conclusion is that the act was not designed as requiring the hall to be constructed and maintained by the city in its private corporate character for emolument and gain, but that it was intended for either private or governmental use, varying from time to time, as the city, through its proper officers, might determine.

"Since there is nothing in the act of the legislature which fixed the capacity in which the city held and conducted the hall or restricted the purpose for which it should be used, the question becomes one of fact to be determined from the evidence.

"This brings us to respondents' second proposition, namely: that defendant at all times conducted and operated the assembly hall, not in the exercise of a governmental function, but in the capacity of a private corporation and proprietor thereof, by letting the same for private uses and reserving rental for such use. It does not appear from the record that the board of public works which, under the charter and act of the legislature, had control of the letting and charge of the hall, ever at any time authorized the use of it for holding the exercises on what was termed 'Empire Day' to commemorate the birthday of Queen Victoria. Indeed, so far as disclosed,

the committee of persons in charge of the celebration assumed the right to hold the exercises there, without consulting with defendant or any of its officials. Waiving this informality, however, and conceding that such authority and right were implied, no pretense or claim is made that the hall was let for hire, or that any rental or revenue was exacted for its use on said occasion. Indeed, with the exception of one occasion in March, 1910, when the assembly hall was by the city council, for a consideration of $25 paid to the city clerk, let for the purposes of a lecture delivered therein, the record fails to disclose that the assembly hall proper, as disconnected from two booths or rooms, was ever at any time let for hire for any private purpose whatsoever. On the contrary, during the same period of time, it appears that the city, at large expense for services of janitors and other necessary charges of maintenance, has devoted it to the use of the public, wherein to hold political, religious, and other meetings, concerts by the municipal band, school commencements, and, indeed, all sorts of meetings of a public nature and for the public benefit, for which no rental or charge was exacted. Notwithstanding such fact, however, the trial court, upon the apparent theory that the structure wherein the hall was located, together with the pier and wharf, should be regarded as one unit and the whole thereof be deemed a 'public assembly convention hall,' permitted plaintiffs to introduce evidence showing that since 1908 defendant had received as hire for the two booths, one in the northwest corner and one in the northeast corner of the building, the combined area of which was 1,582 square feet as compared with an area of 17,446 square feet in the hall proper, the sum of $1,461; that for certain booths and rooms erected at the ocean-end of the pier extending more than one thousand feet beyond the assembly hall building, the city had received several thousand dollars revenue for rent thereof, and the sum of two thousand dollars for a franchise or permit issued to a bathhouse company to construct and maintain a pipe-line along the pier by means whereof to obtain water for its bathhouse, besides receipts of other revenues from the use of the pier and wharf. In admitting such evidence the trial court committed prejudicial error. In our opinion, the pier and wharf and booths at the end thereof were no part of the assembly hall building, but entirely distinct and separate therefrom, as much so, indeed, as though the approach or way

covering the intervening space between the pier and entrance to the hall had never been constructed. Hence, the rental received from this pier and wharf could not be deemed revenue derived from the letting of the assembly hall for hire.

"We perceive no reason why a municipality having a city hall building erected solely for public uses, may not let rooms therein which are not immediately required for such public use, as to which it would occupy the position of a corporate proprietor and as such, like a private owner, be liable for damages sustained by reason of its negligence in connection therewith. When a city or town does not devote such building [public hall] exclusively to municipal uses, but lets it or a part of it for its own advantage and emolument by receiving rents or otherwise, it is liable while it is so let in the same manner as a private owner would be.' (Worden v. City of New Bedford, 131 Mass. 23, [41 Am. Rep. 185]; Little v. City of Holyoke, 177 Mass. 114, [52 L. R. A. 417, 58 N. E. 170]; Chicago v. Selz etc. Co., 202 Ill. 545, [67 N. E. 386]; Davis v. Rockport, 213 Mass. 279, [43 L. R. A. (N. S.) 1133, 100 N. E. 612].) This being true, the letting for hire of these two small booths, disconnected as they were from the assembly hall, as to which defendant's character was that of a private owner, did not fix or affect its character or function in the maintenance of the assembly hall. They were no part of the hall and, like the wharf, the rental received for the use thereof was not for the letting of the hall for hire. Hence, it follows that the ruling of the court in admitting evidence of the letting of these two booths was likewise erroneous.

"Not only was there no evidence of the letting of the assembly hall by the city or its officers, but there was no evidence, nor is there any claim or pretense, that any rental was exacted or paid for such use upon the occasion of the accident wherein Edith Chafor lost her life.

"The building or structure abutted a street on the easterly side thereof from which the hall could be reached by a stairway leading to the entrance of the building. The building was a two-story structure, the lower floor being uninclosed. and at all times open to anyone desiring to go there. The second floor upon which the assembly hall was located was surrounded by an open and covered balcony eleven feet wide, furnished with seats, and open at all times to the general public, the use of which and the lower floor may be likened

CLXXIV Cal.-32

to the use of a public city park. It thus appears that the building was not only designed and constructed for a double use, but that in the conduct and maintenance thereof the city has in part used it in its private corporate capacity in letting for hire the two small booths referred to; that it has used a part thereof, to wit, the balconies and lower floor, at all times in its governmental capacity, like a public park, and that, with the exception of one occasion, in March, 1910, has used the assembly hall at all times without profit, gain, or emolument for the benefit of the general public.

"If correct in our conclusion that the maintenance and use of the hall was not impressed with an exclusive proprietary character, but that the character of the use on the occasion in question must be determined from evidence showing a letting of the hall for private use for hire, as to which the record is wholly silent, it necessarily follows that the court committed highly prejudicial error in, of its own motion, instructing the jury that 'the construction, erection, and maintenance of the auditorium building by the city of Long Beach was an act of said city in the exercise of its proprietary or private capacity, and the measure of its responsibility or liability in relation thereto is the same as that of any other individual or private corporation engaged in similar conduct, and no more or no less.'"'

For the foregoing reasons I am of the opinion that the judgment should be reversed.

Angellotti, C. J., concurred.

Rehearing denied.

[S. F. No. 8189. In Bank.-March 5, 1917.]

In the Matter of the Estate of PAUL SEILER, Deceased. APPEAL-TIME FOR TAKING ORDER ADMITTING WILL TO PROBATE-NEW

TRIAL PENDING.-The provision of section 939 of the Code of Civil Procedure, as amended in 1915, providing that if proceedings on motion for a new trial are pending, the time for appeal from the judgment shall not expire until thirty days after entry in the trial

court of the order determining the motion for a new trial, or other termination in the trial court of the proceedings upon such motion, is applicable in the matter of an appeal from an order admitting a will to probate.

MOTION to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco, admitting a will to probate. J. V. Coffey, Judge.

The facts are stated in the opinion of the court.

A. G. Kazebeer, and J. E. Pemberton, for Appellant.

Cullinan & Hickey, Wilson & Haines, and Hugh K. McKevitt, for Respondents.

THE COURT.-This is a motion to dismiss an appeal from an order admitting a will to probate on the ground that the appeal was not taken within the time allowed by law. It was not taken within sixty days after the date of the entry of the order (Code Civ. Proc., sec. 1715), but it was taken within thirty days after a motion for a new trial duly made was determined. (Code Civ. Proc., sec. 939.)

The court is of the opinion that the provision of section 939 of the Code of Civil Procedure, as amended in 1915 (Stats. 1915, p. 205), providing that if proceedings on motion for a new trial are pending, the time for appeal from the judgment shall not expire until thirty days after entry in the trial court of the order determining the motion for a new trial, or other termination in the trial court of the proceedings upon such motion, is applicable in the matter of an appeal from an order admitting a will to probate, and for that reason the motion to dismiss the appeal is denied.