Statement of case. On the seventh of October he paid duty on the watches, jewelry, etc., and received the same from the custom-house officers. On the morning of the eighth of October, the plaintiff had the aforesaid watches and jewelry and other valuables in a box wrapped in oilcloth and tied with a cord, constituting a package sixteen inches long, ten inches wide, and about seven inches high. He presented the same to the clerk or bookkeeper of the defendant, at the office of the hotel, and requested him to place the same in the safe for valuables, which was in the office; the book-keeper then told him there was no necessity for that, and directed him to take the package to his, plaintiff's room, saying it would be just as safe there. Thereupon the plaintiff took the package to his room, placed it in his trunk, which he locked, and then locked his room, and delivered the key of his room to the clerk in the office, and left the hotel to attend to some business in the city. When the plaintiff offered the package to and requested the book-keeper to place it in the safe, the book-keeper made no inquiry as to the contents of the package, nor did the plaintiff make any statement as to such contents. The plaintiff resided at Syracuse, and intended to leave for that city on the afternoon of October eighth. He returned to the hotel about one o'clock in the afternoon, and went to his room and packed and locked his trunk containing said package, which was then safe. He then locked the door of his room and delivered the key to the book-keeper, at the office, and stated to him that he intended to leave for Syracuse by the first train, and ordered his trunk to be brought down immediately, his bill to be made out, and that he would return in a few minutes and pay it. The plaintiff then went into an eating saloon in the basement of the hotel. In a few minutes he returned to the office, paid his bill and inquired for his trunk, and learned that it had not been brought from his room. The plaintiff then went with a porter of the hotel to his room for his trunk, and upon unlocking the door of the room Statement of case. it was found that the room had been entered, the trunk broken open, and the watches, jewelry, etc., stolen. The defendant kept a safe in the office for the deposit of jewelry, valuables, etc. This the defendant knew prior to the eighth of October. The rules and regulations and notice required by chapter 421, Laws of 1855, were hung up in the room occupied by plaintiff. The value of the articles stolen was $1,856; and for this amount, with interest, judgment was ordered. F. Kernan, for appellant. The referee's findings of fact are conclusive. (Code, § 268; Marco v. L. and L. Ins. Co., 35 N. Y., 664; Fellows v. Northrup, 39 N. Y., 117; Mason v. Lord, 40 N. Y., 477; Putnam v. Hubbell, 42 N. Y., 106, 113.) Such other facts as the evidence tended to prove, will be assumed to sustain the referee's conclusions of law. (Chubbuck v. Vernam, 42 N. Y., 432; Grant v. Morse, 22 N. Y., 323-325; Carman v. Pultz, 21 N. Y., 547.) On the facts found defendant was liable. (2 Kent's Commentaries, p. 593, 1st ed., p. 785, 11th ed; Story on Bailments, § 470, etc.; Hulett v. Swift, 33 N. Y., p. 571; Piper v. Manny, 21 Wend., 282; Grinnell v. Cook, 3 Hill, 485; Clute v. Wiggins, 14 J. R,, 174; Wilkins v. Earle, decided by Commission of Appeals, January Term, 1871, reversing decision of Superior Court, reported 19 Abbott, Pr. R., 190; Kent v. Shuckard, 2 Barn. & Adolph., 803; 1 Smith's Lead. Cases, 309; Coyle's Case, 8 R., p. 33; Piper v. Manny, 21 Wend., 282284; Purvis v. Coleman, 21 N. Y., 111, 116; Richmond v. Smith, 8 Barn. & Cress., 9.) The fact that plaintiff did not state contents of package when he presented it to the clerk, does not exonerate defendant. (2 Kent's Commentaries, p. 594, 1st ed.; 787, 11th ed.; Story on Bailment, § 479; Kellogg v. Sweeney, 1 Lansing, 398; Wilkins v. Earle, 19 Abbott, Prac. R., dissenting opinion and cases cited, p. 203, 205, 207, and cases cited; Fowler v. Dorlon, 24 Barb., 384, 389; Keegan v. H. & R. R. Co., 8 N. Y., 175.) As the package was safe until packed for departure, defendant was as fully respon Opinion of the Court, per PECKHAM, J. sible as if package had been deposited in safe. Stanton v. Leland, 4 E. D. Smith, 88, 92.) S. P. Nash, for respondent. The act of 1855 has reference only to "money, jewels, and ornaments." (Hyatt v. Taylor, 42 N. Y., 258.) The guest should, therefore disclose, that package offered for deposit contains these articles. (Gibbon v. Paynter, 4 Burr., 2298; Pardee v. Drew, 25 Wend., 459; Richards v. Westcott, 2 Bos., 589; Warner v. W. S. Co., 5 Robt., 490; Purvis v. Coleman, 21 N. Y., 111.) By the Court-PECKHAM, J. The statute provides, that if a "guest shall neglect to deposit such money, jewels, or ornaments in such safes (the safe required to be kept by the hotel keeper), the proprietor of such hotel shall not be liable for any loss of such money, jewels, or ornaments, sustained by such guest, by theft or otherwise." (Laws of 1855, p. 774.) The first question that arises here is, did the plaintiff neglect to deposit his money, jewels and ornaments, in the safe which he knew the defendant kept for that purpose? The referee has found (and not without evidence) that the plaintiff, in the forenoon of the day he left the hotel, "presented to defendant's book-keeper a package sixteen inches long, ten inches wide, and seven inches high, wrapped in an oil cloth, and tied up with a strong cord, and requested him to put said package in the safe; that the book-keeper told plaintiff there was no necessity for that; to take it to his (plaintiff's) room; saying it would be just as safe there." This package contained the jewels and ornaments sued for; but the plaintiff did not state its contents, nor did the bookkeeper inquire what it contained. I think this was a "neglect to deposit," within the meaning of the statute. The book-keeper did not know that money, jewelry or ornaments had been offered him. Hence, he did not refuse to receive them. Suppose this package had been of the size of an ordinary trunk; would the clerk have been compelled to receive it? Clearly not; because, first, there Opinion of the Court, per PECKHAM, J. was nothing to notify him that it contained money, etc.; second, so large a package was not within the meaning of the statute; no safe would probably have apartments to receive it. There was nothing about this package to indicate that it was not appropriately sent to the room of the guest. The defendant should not be held to the responsibility of refusing to receive money, jewels, etc., unless he did it knowingly. It is not so found, nor is there any evidence to prove such a fact. The burden rests with the guest to make this deposit. He neither made nor offered to make it, within the meaning of the statute. Simply offering a package of this size, without disclosing its contents, is not offering to deposit money, jewels, or orna ments. Had the clerk been made aware of the contents of the package, and had then directed it to be taken to the plaintiff's room, he would have waived the protection of the statute. It is also insisted that, after this jewelry, etc., was packed, and notice given to the clerk to bring the trunk down immediately, with the intent to leave the hotel, defendant is liable for any loss thereof, thereafter occurring in the hotel, whether the jewelry had been deposited in the safe or not. The statute is very broad in its language, that, "if such guest shall neglect to deposit, etc., the proprietor shall not be liable for any loss of such money, etc., sustained by such guest, by theft or otherwise." This was evidently aimed at losses that should occur by such neglect. It could have no reference to losses at the inn, occurring before the guest had the opportunity to make such deposit, or after he had packed his trunk, locked his room, and given notice for immediate departure, etc., delivered up the key of his room to the clerk, to have his trunk brought down. (Stanton v. Leland, 4 E. D. Smith, 88.) Had the valuables been in the custody of the clerk in the safe, they must have been delivered to the guest to be packed prior to his departure, and if lost thereafter without the fault of the guest, the landlord would be liable. Statement of case. The liability of the landlord is discharged, so far as the remedy is applied; so far as the peril is removed. It should not extend, and was never designed to extend, any further. It may be remarked, that a considerable portion of the property recovered for, was neither money, jewels, or ornaments, and hence, the landlord was not exempt from liability for the loss thereof, under this statute. It was neither within the statute or the notices posted in the hotel. In the view taken of this case, the exceptions taken to the exclusion of evidence become immaterial. Purvis v. Coleman (21 N. Y., 111), has no application to this case. The order for a new trial is reversed, and the judgment 46 271 108 362 46 271 JAMES L. LAMB and others, Respondents, v. THE CAMDEN Plaintiffs shipped at Cairo, Ill., by the Illinois Central Railroad a quantity of cotton, consigned to S. W. & Co., New York. In the bill of lading given by the I. C. R. R. Co. its agent was named as consignee at Chicago. The bill of lading exempted that company from "damage or loss by fire," and also, from all responsibility for the safety or safe carriage of the packages beyond the line of its road, but stipulated that the through rate should be two dollars per 100 pounds. The I. C. R. R. Co. contracted for the transportation from Chicago to New York with the U. T. Co. The bill of lading containing a similar exemption from loss or damage by fire, and, also a stipulation, that in case of loss the latter company should be liable only for the value of the property at the time of shipment. The cotton was received by defendants at Philadelphia; transported to New York, and while in their custody upon their pier was destroyed by fire.-Held, 1st. That the contract with the I. C. R. R. Co. was not a through contract; but under it, that company had power to contract for the transportation beyond the line of its road, and to provide in such contract, for a like exemption of the subsequent carrier, as that contained in its own 125 160 46 271 127 506 46 271 142 510 46 271 155 586 46 271 168 2220 |