#### Helma Anderson, Appellant, *v.*Samuel Steinreich, Respondent.

(City Court, of New York, General Term,

July, 1900.)

1. Negligence — Rule of recovery where an occupant of premises has ceased to be a servant and has become a tenant.

Where a woman, who went into the occupation of premises under conditions which made her to some extent the servant of the owner, subsequently voluntarily assumes to him the relation of a tenant, she cannot, when thereafter injured by ,a defect in the premises, recover under the rules of law applicable to master and servant, but only under those relative to landlord and tenant.

2. Same — Contributory.

She cannot recover for injuries received as a tenant where she has voluntarily exposed herself to dangers which she knew existed at the beginning of her occupation.

Appeal from a judgment of the City, Court of the city of New York, entered upon a dismissal of the complaint at trial term, at the close of the plaintiffs case, and from an order denying a motion for a new trial.

Frank J. McKarron (Woolsey Carmalt and George W. Bristol, of counsel), for appellant.

M. S. and I. S. Isaacs (Julius J. Frank, of counsel), for respondent.

Conlan, J.

Two elements may be said to exist in this case, namely, the relation of landlord and tenant and that of master and servant, to each of which a different rule applies. It is alleged that the plaintiff was hired as janitress of a certain flat or apartment house and was allowed a certain portion of the premises as her living apartments, and at a reduced rent, in consideration of services to be rendered. In other words her services were to be taken in consideration in fixing the amount of rent for which she was to be liable, as a cash payment; This cash payment was origi*238nally fixed at nine dollars per month, and there was a monthly hiring at that rate. The tenant, as it is alleged, pointed out certain defects in the ceiling of a portion of the premises allotted to her, claiming the same to he a source of danger, and the defendant is alleged to have pronounced.it safe and in addition said the same would be repaired. Upon this state of affairs the plaintiff went into possession, and it may with reason be asserted that the relation of master and servant was thus established, and under the rule that the master must furnish his servant with suitable appliances for the work required to be done, would in consequence he liable in damages for a failure to perform on his part. But it appears that the plaintiff subsequently complained to the landlord that the cash rental was too high, and thereupon a new agreement was entered into between the parties, and the cash payment per month was fixed at seven dollars. It does not appear that the promised repairs had been made at this time, nor does it appear that anything was said by the plaintiff about the dangerous condition of the premises at the time of this new agreement, so that we have a person voluntarily consenting to place herself in a position of apparent danger without any protest, and it must be said of her act that she assumed all of the risk and herself contributed to the negligence which resulted in the injuries complained of. She cannot shield herself behind the barrier which the relation of master and servant would afford her for her protection. No assurance was given her of safety under the new arrangement and apparently she was willing to assume all of the risk by reason of the reduction in rent; she was fully acquainted with the situation, and if danger was to be apprehended, she had full knowledge of it. .

But it further appears that a week before the accident, she had been superseded in her position as janitress, and thereafter remained as tenant only, and was such at the time the accident occurred. By this new arrangement it cannot be said that the relation of master and servant continued, and that the plaintiff was therefore at the time of the accident a tenant in possession with full knowledge of the exact situation, and of all that was likely to occur, and this occupancy was by her own voluntary act. The attention of the landlord does not appear to have been called to the question of repairs under any arrangement than that first made, and there was no promise by him at any other time to repair, nor any declaration of safety by him to the tenant. The plaintiff re*239mained in. possession from September fifteenth until the fifteenth of February following, a period of six months, and during all this time she voluntarily exposed herself to the danger of which she had complained at the outset. She certainly could have relieved herself by moving out, and is not to be absolved by remaining in.

We are for these reasons satisfied with the determination had upon the trial, and the judgment and order appealed from must be affirmed, with costs.

Hascall and Schuchman, JJ., concur.

Judgment and order affirmed, with costs.