#### WESLEY FITCH, Appellant, *v.*JACOB CASLER, Respondent.

*Inn-Tceeper and guest*— *when that relation does not exist.*

The defendant, an inn-keeper, issued invitations for a “ fourth of July party ” at his inn; he furnishing music, a supper and stabling for the horses, for two dollars. In pursuance of one of these invitations plaintiff attended, stabled his horse with the defendant; danced, and had supper, paying therefor two dollars. He also drank at the inn, liquors being charged for in addition to the two dollars. In an action brought to recover for an injury to plaintiff’s horse, *held,*that the relation of inn-keeper and guest did not exist.

Appeal from a judgment of tbe Otsego County Court in favor of tbe defendant, entered upon tbe verdict of a jury. Tbe action was brought to recover for injuries sustained by plaintiff ;s horse.

Tbe defendant kept a hotel. A short time before tbe fourth of July, 1877, tbe defendant issued cards, of which tbe following is a copy: “Fourth of July party at Casler’s Hall, Springfield Centre, N. Y., Wednesday evening, July 4, 1877, yourself and lady are respectfully invited to attend. Music by tbe Old Utica Band, Jacob Casler, proprietor. Room managers, John Hann, Samuel Hillsinger, bill two dollars.” Tbe plaintiff received one of these cards, and, thereupon, on tbe evening designated, went with a horse and buggy to tbe defendant’s hotel. On arriving there, by direction of the hostler, he put his horse in the barn of one Mr. Rozie, engaged by the defendant for the occasion. The plaintiff took part in the dance, and had supper and paid his bill. The two dollars mentioned in the bill covered the night supper, hay for the horse and the dancing bill, but not supper at any other time, or cigars, or spirits. The plaintiff drank at the hotel. The dancing hall is a part of the hotel. Supper was in the dining-room of the hotel. The ball room and sitting room were open to the persons who came to the party. The ball was gotten up for the benefit of the defendant. There was evidence that the plaintiff’s horse was injured. The court held that the relation of innkeeper and guest did not exist; and the only question on this appeal was upon that holding. The question of liability for negligence was submitted to the jury.

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      *Lynes & Van Horn,*for tbe appellant.

*Samuel A. Bowen,*for tbe respondent.

LEARNED, P. J.:

Tbe well-known principle of tbe liability of an inn-keeper bas been maintained, in order to protect those wbo come to bis bouse, as to an inn or hotel. *(Calyes Case,*8 Coke, 32.) It certainly cannot be that, if an inn-keeper invites a friend to dinner, that peculiar liabibty arises. And, so in tbe present case,.the plaintiff came on tbe invitation of tbe defendant. He came, not as to an inn or hotel, but as to a ballroom, for the purposes of engaging in a dance. He was to pay a certain charge for admission, and this charge included tbe care of bis horse. Still be was not a traveler and did not come in that character. He would have bad no right to come, if be bad not been invited.

It is true, as urged by tbe plaintiff, that even tbe purchasing of liquor bas been bold sufficient, under some circumstances, to make one tbe guest of the inn-keeper. This shows that it is not tbe amount of refreshments, but the character under which tbe purchaser buys them, which determines tbe relation of tbe parties. Tbe defendant, in this instance, was in tbe same position with any other owner of a ballroom, wbo should, for tbe purpose of profit, invite certain persons to come to it for a dance, and should charge them a certain price for tbe dance, tbe supper and for tbe care of their horses. *(Carter*v. *Hobbs,*12 Mich., 52.)

It may sometimes be difficult to draw a fine between cases where tbe person is, or is not, in respect to tbe transaction in question, an inn-keeper. But we think tbe proper rule was adopted in this case, and that the judgment should be affirmed, with costs.

Present — LearNed, P. J. and BoardmaN, J.; Bocees, J. taking no part.

Judgment and order * affirmed, with costs.