
    CITY COURT OF YEW YORK, GENERAL TERM,
    DECEMBER, 1901.
    Helma Anderson, Appellant, v. Samuel Stenreich, Respondent.
    Appeal from a judgment entered upon a verdict in favor of defendant.
    George W. Bristol (Woolsey Carmalt, of counsel), for appellant.
    M. S. & I. S. Isaacs (Julius J. Frank and Julien M. Isaacs, of counsel), for respondent.
   Fitzsimons, Ch. J.

The defendant, being the owner of a dat house in this city, employed plaintiff as j anitress of such house and agreed to give her each month for services rendered as such the sum of twelve dollars, which was subsequently made fourteen dollars. At the same time she rented from him certain apartments in said house at the rate of twenty-one dollars per month, from Avhich should be deducted her charge for services rendered as j anitress, therefore between them existed a two-fold relation, that of master and servant, while she was performing service as j anitress, and that of landlord and tenant, while she occupied the premises rented by her. The rules of law applicable to these several legal relations are well known and all alike..

Oh February 15,1898, while plaintiff was engaged wholly in performing her household duties in her apartment the ceiling in the kitchen thereof fell, and, as she claims, struck her upon her head and other parts of the body, doing her great harm and causing a miscarriage. As before stated, at the time plaintiff was injured she was not doing worlc as janitressj hut wholly and solely was doing household ditties, therefore, at that time the legal relations existing between her and defendants were then of landlord and tenant, and not those of master and servant. At the request of defendant’s counsel the trial justice charged the jury as follows: “ That unless it appears by a preponderance of evidence that at the time and place of the accident in suit plaintiff was engaged in the performance of her duties as janitress, or in work incidental thereto, the jury must find for the defendant. The court: I charge that. She was there; that was her flat; she was to he in that'house to do her work. Exception taken by plaintiff’s counsel. Also that the burden is upon the plaintiff to establish, by a preponderance of evidence, that the occupancy of the apartment in question was connected with or acquired for the proper or better performance of her duties as janitress. Charged. Exception by plaintiff’s counsel.”

Tn so charging the jury the trial justice practically directed them to find a verdict in defendant’s favor. Because it was conceded by both sides that at the time she claims she was injured, she was not acting or performing her work as janitress, therefore, the legal relations existing at that instant between these parties were then of landlord and tenant, and to charge as he did the justice committed fatal error.

The judgment must he reversed, and a new trial ordered, with costs to appellant to abide event.

Conlan and Hascall, JJ., concur.

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