Opinion
January Term, 1899.
M. Fillmore Brown, for the appellant.
Moses Shire, for the respondent.
This action was begun December 31, 1896, to recover damages of Robert Ferguson, owner, and Anton D'Andrea, the alleged lessee of No. 112 Main street in the city of Buffalo, alleged to have been used as a hotel, for the failure of the owner and occupant to provide "a rope or other better appliance" in a room occupied by the plaintiff and from which she attempted to escape during a fire. In 1896 the respondent was the owner of a large brick building four stories high, and known as No. 112 Main street, Buffalo. He leased a portion of this building to Anton D'Andrea or to Joseph Carlino, which portion one or the other, or perhaps both, by turns, occupied as a liquor saloon. having on the first floor an office and a bar, on the second floor a kitchen and dining room, on the third floor six rooms, and on the fourth floor six rooms. The rooms on the third and fourth floors were occupied by renters and lodgers. No register was kept in the hotel, which was run on the European plan.
Assuming, without deciding, that No. 112 was November 1, 1896, a hotel within the meaning of section 40 of chapter 376 of the Laws of 1896 (The Domestic Commerce Law), and assuming, without deciding, that the plaintiff was a hotel guest within the meaning of that section, I think she waived all right to maintain an action against the defendant for injuries received by reason of his failure to supply her room with a rope. The plaintiff had occupied a room in this building for ten months, and for six months had occupied the room in which she slept on the night of the fire, paying a weekly rent therefor, and eating when and where she chose. She knew that there was no rope in the room, but made no complaint. There were outside iron fire escapes, and the platform to one of them was directly under one of the windows opening out of the plaintiff's room, which window she kept nailed down to prevent unbidden persons from entering her room by the fire escape. The man who occupied the room with the plaintiff on the night of the fire escaped from the burning building by means of this fire escape, which the plaintiff, through fear or confusion, neglected to avail herself of, and jumped to the ground, receiving injuries for which she seeks to recover damages. The plaintiff testified that she was twenty-seven years of age, and for ten years had been by occupation a professional bicycle rider, riding in races, and thereby before her injuries making a comfortable living; but that by her injuries her health and strength have been so impaired that she is unable to make a living as before.
In Huda v. American Glucose Co. ( 154 N.Y. 474) it is held that a workman employed in a factory, which was within the statute requiring the owner to maintain fire escapes easily accessible from the workmen's room (Chap. 409 of the Laws of 1886, § 6, as amd. by chap. 673, Laws of 1892, § 6), might by acquiescence waive its provisions and assume the risk incident to the absence of such escapes. In Willy v. Mulledy (78 id. 310, 315) the same rule is recognized.
Under the authority of these cases I think the learned trial judge correctly held that under the evidence in this case the plaintiff was not entitled to recover.
The order should be affirmed, with costs.
All concurred, except WARD, J., not voting.
Order affirmed, with costs.