#### Hugo Metzger, Appellant, *v.*Charles Schnabel, Respondent.

(Supreme Court, Appellate Term,

June, 1898.)

Innkeepers — When a person is a guest and not a boarder — Liability for unexplained loss of apparel.

A foreign army officer, who takes a room in a hotel for an indefinite time at an agreed price of one dollar and twenty-five cents per week, is a guest and not a boarder, and the hotel-keeper is liable to -him for the value of wearing apparel which disappeared from his room, in some unexplained manner," and without any negligence upon his part.

Appeal from a judgment of the Municipal Court of the City of Hew York, borough of Manhattan, seventh district, rendered by the justice, without a jury, in favor of the defendant.

Louis Scheuer, for appellant.

Wasserman & Jacobus, for respondent.

*Per Curiam.*

The plaintiff brought this action to recover the value of some wearing apparel, which disappeared, during the absence of the plaintiff, and without any negligence on his part, in a manner unexplained, from a room in the defendant’s hotel, which the plaintiff rented of defendant.- At the conclusion of the defendant’s testimony, the trial justice dismissed the complaint. The pleadings -are in writing, and the allegation in the complaint that the premises, in which the plaintiff rented the room, is" a duly licensed- hotel or inn, is not. denied by the answer. Furthermore, the witnesses called by the defendant state that ■the place in question kept by the defendant, is a hotel. ■ The exact relation of ■ the parties is not clearly, defined by the testimony. It would seem that the justice, having dismissed the complaint, found that the relationship of innkeeper and guest was not established; for, if that were the true relationship of the parties, under the circumstances of this case, as disclosed by the evidence, the defendant is liable for the loss that the plaintiff sustained. From a careful examination of the entire testimony we are unable to discover any testimony to support this conclusion. As we -haVe *699already seen, the character of the defendant’s establishment is conceded to be a hotel. It also appears that plaintiff rented a room there, which was cared for by the defendant, and that there were two keys to the room, one carried by the plaintiff, the other kept by the defendant. It dees, not appear that the plaintiff bargained •to remain for any particular time; although it is .true that the agreed price of the room was to be $1.25 per week. But a special agreement fixing in advance the price to be paid, or the length of the stay, does not absolutely disturb the relation of innkeeper and guest, and constitute the person so acting a boarder or lodger. 11 Am. & Eng. Ency. Law, pp. 12, 15. A guest has been defined to be one who “ comes without any bargain for time, remains without one, and may go when he pleases, paying only for.the actual entertainment which he receives; and it is not enough to make him a boarder, and not a guest, that he has stayed a long time in the inn in this way.” Shoecraft v. Bailey, 25 Iowa, 553; citing 2 Parsons on Cont. 162; Story on Bailments, § 447. But the more recent decisions of this state hold that the fixing of the price does' not make the party a boarder. Hancock v. Rand, 94 N. Y. 8. A boarder has been defined to be one who “ has food or diet and lodging in another’s family for reward.” 2 Am. & Eng. Ency. Law, p. 437. A lodger is one who *“*inhabits a portion of a house of which another has the general possession and custody.” 13 Am. *&*Eng. Ency. Law, p. 1003.

We do not think the testimony will warrant the conclusion that there was an arrangement between the parties, which constituted an explicit contract that deprived the plaintiff of the privileges and rights of a guest.. It is uncontradicted that the plaintiff is an officer in the German army, and, although his employment in this city, at the time of the loss, would indicate that he had taken up his residence here, it does not overcome his direct testimony that he was an officer in the German army and a wayfarer here.

The common law holds the innkeeper absolutely liable for all thefts from within or unexplained losses of property in his charge, belonging to his guest; although he may be discharged from liability by any contributory negligence of the guest. 11 Am. & Eng. Ency. Law, pp. 51, 53. In this case, as we have seen, there is no question of any contributory negligence, nor has the defendant furnished any explanation of the loss. In the case of Mowers v. Fethers, 61 N. Y. 37, our court of last resort held that *“*The duties, *700rights and responsibilities of an innkeeper are in most respects kindred to those of a common carrier, but in order to enforce the strict common-law liability of an innkeeper, the technical relation 'of guest and-innkeeper must be established.” The duty of a boardinghouse keeper -or lodging-house keeper to his boarder or lodger is to take the same care of his boarder’s or lodgePs property that a pru-dent person takes of his own; and the trial justice has presumably adopted the view that this relationship existed between the parties; that the defendant has shown that he took the care required of plaintiffs property, and that the defendant was, consequently,, not liable for the loss. We do not concur in this conclusion. We are of opinion that the relationship of innkeeper and guest existed between the parties. The case of Hancock v. Rand, *supra,*supports the appellant’s case and is applicable to the facts here presented.

' We are of opinion that the conclusion reached by the trial justice is wholly unwarranted by the evidence, and that the judgment • should be reversed and a new trial ordered, with costs to appellant to abide the event,

Present:- Beekman, P. J., Gildebsleeve and Giegebich, JJ.•

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