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.