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

(Supreme Court, Appellate Term,

November, 1900.)

Negligence — Master liable to janitress for the fall of a cracked ceiling.

The relation which exists between a janitress, receiving the use of certain rooms in a building as part payment for her services, and the owner of the building, is that of master and servant and is not that of landlord and tenant; and, therefore, where she is injured by the fall of plaster from a ceiling of one of her rooms which was. cracked when she began to occupy, and after the landlord had promised, but failed, to repair the ceiling, she is entitled to recover of him damages for her injuries.

Appeal from an order of the General Term of the City Court of the city of New York, affirming a judgment for the defendant and denying a new trial, and also an appeal from the judgment of affirmance. The action was for damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant.

F. J. McBarron (George W. Bristol and Woolsey Carmalt, of counsel), for appellant.

*681M. S. & I. S. Isaacs (Julius J. Frank, of counsel), for respondent.

*Per Curiam.*

This is an appeal from an order of the General Term of the City Court of the city of New York, affirming an order, denying a motion for a new trial, and the judgment heroin, and from the judgment of affirmance entered on said order first above mentioned.

It is admitted by the pleadings that, at the time of the accident, the plaintiff was employed by the defendant as a janitress. The evidence shows that she received the use of certain rooms as part payment for her services as janitress, and that while she was in one of said rooms the plaster on the ceiling thereof fell upon and injured her. The evidence also shows that at the time appellant took possession of said rooms, said ceiling was cracked, that the respondent, when his attention was called to the condition of the ceiling, promised to repair it, and that such repairs were never made. We are of the opinion that, under these conditions, the relation of master and servant, and not landlord and tenant, existed between the respondent and the appellant, and that the occupation of the premises by the appellant was the occupation of a servant and not of a tenant. Kerrains v. People, 60 N. Y. 221; White v. Sprague, 9 N. Y. St. Repr. 220. In Schick v. Fleischhauer, 26 App. Div. 212, the Appellate Division in the .first department, in referring to the case of White v. Sprague, *supra,*said that it is evident that the liability in that case might well have stood on the duty of the landlord as an employer to the plaintiff as his servant, and that upon that theory only could the case be sustained. It is to be noticed that, in White v. Sprague, *supra,*the plaintiff was employed by the defendant as janitress of an apartment house belonging to the defendant, and that she was injured by the falling of the plastering in a portion of the building. It was also held by the Appellate Division in this department, in Siedentop v. Buse, 21 App. Div. 592, that a master who assigns to a servant a sleeping room the ceiling of which is cracked, and who, upon being apprised by her of the condition of such ceiling, assures her that it is not dangerous, and will never come down, is liable for the injuries resulting to the servant from the fall of a part of the ceiling, and that the servant is not chargeable with contributory negligence because she continued to occupy the room beneath the defective ceiling.

*682Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Truax, P. J.; Scott and Dugro, JJ.

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