Anderson v. Steinreich

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 herein, and 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 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. Rep. 220 . In Schick v. Fleischhauer, 26 App. Div. 212 , 49 N. Y. Supp. 962 , 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 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 ,