
    Mary Ellen Walker, Appellant, v. Michael J. Gleason, Respondent.
    Second Department,
    December, 1905.
    Negligence — when defendant not liable for injuries to lessep caused by fall of ceiling.
    In an action against a lessor for injuries received by a tenant through the fall of a ceiling in the kitchen leased by her, it was shown that the defendant allowed the plaintiff three dollars per month for'cleaning halls, lamps, etc., and that, having removed to her own kitchen one of the lamps aforesaid, she was injured through the fall of the ceiling.
    
      Held, that there could be no recovery based on the theory that the defendant, as master, had failed to furnish a safe place for plaintiff to work, as plaintiff was performing the services in her own apartments, which she occupied as tenant, and which were not furnished by the defendant as a place for her to work.
    Appeal by the plaintiff, Mary Ellen Walker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2d day of February, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence upon a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 23d day of January, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Frank F. Davis [Charles J. Belfer with him on the brief], for the appellant.
    
      Woodville Flemming, for the respondent.
   Woodward, J.:

The plaintiff rented four rooms, a parlor, two bedrooms and a kitchen of the defendant for ten dollars per inonth, and was allowed three dollars per month, for cleaning the halls, sweeping them and scrubbing them, cleaning the lamps and putting them out, and supplying the -oil, putting out'the ashes and cleaning the cellar. It does not appear that the landlord retained possession "of the rooms on the second floor occupied by the plaintiff in any respect whatever ; he merely had charge of the halls and cellar, and it was the plaintiff’s duty to keep these in- condition by cleaning and lighting the same, for. which she was allowed three dollars per month on her rent. The plaintiff, on the 8th day of April, 1.903, took the lamps from the hall into her own kitchen for the purpose of cleaning and filling them,, and while engaged in this work a portion of the ceiling in her kitchen fell, producing the injuries for which she seeks, a recovery against her landlord, on the theory that she occupied the relation of servant to the defendant as master, find that he had failed to furnish her'a reasonably safe place in which 1 to perform her labors. The learned court' at the trial dismissed the complaint upon the authority of Bohiak V. FleisoKkauer (26 App.-Div. 210), and we are of opinion that this disposition of the case is in accord with the law'of this State. The mere fact tliat in cleaning and lighting, the halls of the defendant’s building the plaintiff occupied the relation of a servant, did not impose -a duty upon the landlord to protect the plaintiff in her own apartments if she chose to perform some of the duties in these rooms. Within the rooms over which the plaintiff had control her relations were those of á tenant; she cou-Id not, knowing a dangerous defect, continue to live- in the apartments and hold the landlord as for a tort when the dangerous condition resulted in' an injury, and the mere fact that she had elected to bring some of - her work as jahitress into her own rooms for performance could not'change the relation. There is no evidence that the defendant had failed to furnish a reasonably safe place in which this work was to be performed, or in which it might be performed'; he did not furnish the plaintiff’s kitchen for that purpose, for the evidence is that she rented and had possession of the four rooms upon the. second floor, and as the- master did not furnish the place where the accident occurred, he cannot be held liable for negligence in failing to have the plaintiff’s kitchen in repair.

The judgment and order appealed from should he affirmed, with costs.

Present — Hibschberg, P. J., Woodward, Jenks, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  