#### John D. Ramaley, plaintiff and respondent, *vs.*Charles Leland *et al.*defendants and appellants.

1. Hotel keepers are not liable for property lost by a guest, in their hotel, if the property comes within the provisions of the act of the legislature, of April 13', 1865, “to regulate the liability of hotel keepers;” (viz. “money, jewels or ornaments,”) or the guest made a contract with them not to hold them responsible for such property if not deposited in their safe; or -he was guilty of negligence, which contributed to the loss.

2. The act of April 13,1856, was passed to protect and limit the common law liability of hotel keepers, and authorizes, *it seems,*no more than they had a right to do, in order to protect themselves, without any statute.

3. The statute is not to be construed strictly, and admits of a reasonable exception.

*4.*The application of the statute is limited to money, jewels and ornaments. A watch scarcely comes under either of the latter designations, unless its value *359is far beyond that of those ordinarily carried by travelers, and is greatly enhanced by jewels with which it may be ornamented. Being an article worn for constant use, when carried by a man, it can hardly be said to be a mere ornament.

6. A chain attached to a watch, also, may be a necessary appendage, and can only rank as jewelry or ornaments when its value or fashion exceeds that of one worn for mere use.

6. So, too; the statute must bear a reasonable construction, as to money. It is not to be expected that a man should deposit in the safe provided for it by the statute, every cent he has about his person.' He is entitled to carry with him to his bed chamber, at night, for the purpose of meeting contingencies which may occur, a reasonable sum, such as a prudent man would keep about him. And it is for the jury to say what is a reasonable sum.

7. Where no request is made, to the judge, to submit that question to the jury, it may be assumed that $50 is a reasonable sum for the guest to retain about his person.

8. A notice printed at the head of each page of a register of arrivals, at a hotel, stating that “money, jewelry and valuables must be placed in the safe in the office, otherwise the proprietors will not be responsible for any loss,” under which guests register their names, cannot be converted into a contract, without proof that the guest’s attention was called to it, and he signed his name with intent to be bound by it.

9. The court, at the trial, is not bound to hold that the omission of a guest to fasten the fanlight over his door, on retiring at night, is negligence; where it is admitted that it was too small to admit of any person’s entering.

10. In the absence of direct evidence, it is for the jury to determine whether the key of the door could be turned from the outside; or whether the guest used the fastenings of the door to secure it, or not; or, he having testified that he locked it, whether it was negligence not to bolt it.

(Before Robertson, Ch. J., and Jones, J.)

Heard June 11, 1868;

decided December 31, 1868.

Appeal by the defendants from an order made at .a special term, denying a motion for a new trial.

The action was brought to recover the value of money and a watch and chain, &c. alleged to have been stolen from the plaintiff while a guest in the hotel of the defendants; the theft having been committed in the room of the plaintiff, in the night time, after he had retired to bed.

The plaintiff alleged, in his complaint, that being a resident of Pittsburgh, and being on a visit to the city of New York, in April, 1867, he put up and lodged at the Metropolitan hotel, kept by the defendants, in said city, as a guest *360or customer thereof, and was received as such upon ihe ordinary and usual rates or terms charged by said hotel to travelers and sojourners. That on the evening or night of the same day he went to the room in said hotel, set apart for and furnished to him by the defendants, and after fastening said door by means of a lock and key thereto belonging, retired to rest in the bed in said room. That he had with him in said room $50 in money, and, attached together, a gold watch of the value of $220, a gold watch chain of the value of $123, and a gold key and seal of the value of $10, which the plaintiff put under his pillow on going to bed, as aforesaid. That the said room was, during the night, entered by means of a key or otherwise, by a thief or thieves while the plaintiff was asleep therein, and he was robbed of the said $50 in money and of his said watch and chain, and seal and key. That the aforesaid robbery was in consequence of the acts, omissions, carelessness and negligence of the defendants. That by reason of said robbery the aforesaid money and other property, had become wholly lost to the plaintiff, to his damage of $403, for which sum, with interest from the first day of May, 1867, he demanded judgment against the defendants, besides costs.

The defendants, in their answer, denied the principal allegations of the complaint; admitting, however, that they were proprietors of the Metropolitan Hotel, and that the plaintiff was a guest in said house on the 9th, 10th and 11th days of April, 1867. They alleged that on the 9th day of April, a. d. 1867, the plaintiff came to the hotel of tlie defendants, put up and lodged at said hotel as a guest or customer, and was so received upon the same written terms and agreement as other guests and customers are received, and under the same contract in writing, and on the same and ordinary terms and rates charged to, and made by, said defendants with their travelers, guests and sojourners, and that the plaintiff at the time he came to the said hotel and became a guest of the defendants, made and entered into an agreement in writing with the defendants the same *361agreement which all of the guests sojourning, and travelers stopping or staying at said hotel, make and enter into, and signed their names'thereto, of which agreement these became and were the terms and conditions, and upon which the plaintiff became a guest and sojourner in the defendants’ hotel, viz:

“ April 9th, 1867; Metropolitan Hotel: S. Leland & Co.; Money, Jewelry and Valuables must be placed in the safe in the office, otherwise the proprietor will not be responsible for any loss.”

That the plaintiff was assigned to and occupied room number 569, in said hotel. The defendants admitted that the plaintiff locked the door of said room, and fastened the said door, by means of a bolt, lock and key, thereunto belonging, retired to rest in the bed in said room. But they denied that the plaintiff lost or had taken or stolen from him, while in the defendants’ hotel, any, or either of the articles mentioned and set forth in the complaint, or that either $50, the gold watch, chain, key or seal, ever came into the possession of, or into the hotel of the defendants, or were in the possession of the plaintiff, when he occupied said room, and they denied that said alleged robbery resulted from the carelessness and want of proper precaution on the part of the defendants in protecting their said guest as is alleged in the complaint, or otherwise, and alleged that each, every and all customary and necessary precaution, care and watchfulness were used on the part of the defendants to protect and defend the interests and effects of the plaintiff; and alleged that the plaintiff lost the articles, money, watch and chain outside of the said Metropolitan Hotel, and did not miss them until he had returned to the hotel and awoke in the morning. That the room occupied by the plaintiff was at the time of the loss alleged in the complaint adequately supplied with a lock and key, and with a patent bolt of the most approved kind, a self-fastening bolt on the-inside, not capable of unbolting from *362the outside, that the door light over the door called a fanlight, was a sash on fastenings, so narrow in space that no person could go through it, or he put into or enter the window fanlight, or sash of the room from the inside, or from the outside of the hotel, on account of its distance from the ground, and other difficulties and obstructions. They denied that they were ever in possession of the articles set forth in the complaint, or that such articles were ever under their control, or that they were ever delivered to the defendants as hotel keepers or otherwise, but the same. were private articles under the immediate control of the plaintiff, and did not come to the knowledge of the defendants, and were not intended by the plaintiff* to be placed under their care, but were kept and retained in the exclusive possession of the plaintiff*, on and about his person. They also set up, as a defense, the act of the legislature, of April 13, 1855, “ to regulate the liability of hotel keepers; and alleged that they had provided a suitable safe for keeping the money, jewels, &c. of guests, as specified in said act, and had posted in the different rooms of the hotel, notices stating that fact.

On the trial the defendants offered in evidence their register of arrivals at the hotel, of the date of April 9,1867.' The plaintiff’s counsel objected to its admission. The court asked for what purpose the book was offered, and the defendants’ counsel stated that it was for the purpose of showing a contract between the parties. The page of the register containing the plaintiff’s signature, was signed by him, about the middle of the page after a number of other signatures; and at the top of the page, and of every page of the register, were printed the following words:

“ Metropolitan Hotel: 8. Leland & Co.; Money, Jewelry and Yaluables must be placed in the safe in the office, otherwise the proprietors will not be responsible for any loss.”

The court sustained the objection of the plaintiff’s counsel, and the defendants’ counsel duly excepted.

The evidence being closed, the defendants’ counsel moved *363to dismiss the complaint, on the ground that it appeared, uncontradicted, from the evidence, that there was no negligence on the part of the landlord; that he had taken every precaution to protect his guests. Also, that the plaintiff himself was guilty of neglect and carelessness on his part, and could not recover. The court denied the motion, to which decision the defendant’s counsel excepted.

The jury found a verdict in favor of the plaintiff, for $425.32. A motion for a new trial was subsequently made and denied.

*John Bitch,*for the defendants, appellants.

*J. N. Balastier,*for the plaintiff, respondent.

I, There is no ground whatever for disturbing the verdict of the jury. The proof of the robbery was perfectly clear; the amount of money, ($50,) not too great for a merchant from Pittsburgh, stopping at a New York hotel, and purchasing goods here, to have upon his person.

II. The only exceptions of the defendants'counsel were, first, to the exclusion of the pretended “ contract ” in the hotel register; secondly, proof of notice being posted in the room, under the innkeepers’ act; and, thirdly, of another notice being posted in the halls of the hotel. If the appellants have any grounds for a new trial, they are confined to those exceptions.

HI. The notice under the innkeepers’ act was properly excluded, because the act does not apply to the necessary traveling money, - and the watch and chain of a traveler. The innkeeper, as to these items, is still subject to his common law liability. *(Gile*v. *Libby,*36 *Barb.*70.) Proof that the notice was posted in the room would, therefore, have been immaterial and irrelevant. *(See Judge Leonard's brief opinion in above ease, at p.*78.)

IV. The notice posted about the halls, and not alluding to a safe, could not possibly affect or limit the innkeepers’ absolute common law liability. It was properly excluded.

*364Y. .The attempt to make out that the notice at the top of the page of the register, was “a contract” between the landlords and their guest, needs not a word of argument. It was properly ruled out.

YI. The liability being according to the common law, there can be no doubt that the verdict must stand. The extent of an innkeeper’s common law liability is very clearly defined in recent cases. *(See Hulett*v. *Swift,*33 *N. Y. Rep.*571, *and S. C.*42 *Barb.*230; *Stanton*v. *Leland,*4 *E. D. Smith,*88; also, *Gile*v. *Libby, supra, at p.*74.)

YII. The case of *Gile*v. Libby, decided by the Supreme Court, general term, in the first district, (36 *Barbour,*70,) covers all the points of this case. There the guest was robbed at night, in a hotel in this city, of $25 in money, a gold watch and chain, and pencil case. ' It was proved without objection that the notice required by statute was duly posted in the room, and that there was a safe provided, &e. The court held that the exemption under the act of 1855 was intended to apply only to such an amount of money and such jewels and ornaments as a landlord himself, if a prudent traveler, would put in a safe on retiring, and they also held that $25 in money and a gold watch and chain and pen and pencil were not within the intent and meaning of the section, and that the watch, chain, pen and pencil should be considered a part of the guest’s wearing apparel. It may also be doubted whether a watch comes under the head either of jewelry or ornaments.

III. It is only necessary to reflect a moment upon the intolerable inconvenience and nuisance, to landlords as well as guests, of a nightly deposit and daily restoration of all the pocket money, watches, chains, rings, breast-pins, bracelets and pencils belonging to the 600 or 700 guests in the Metropolitan Hotel, to be convinced that the Supreme Court decided correctly. No “safe” to contain all these articles ever entered the imagination of the legislature; no such perplexity and expense ever suggested itself to the landlords, for whose benefit the law was passed.

*365IX. The common law liability attached in this. case. Under the common law the landlord can excuse himself only by the fraud or negligence of the guest, the act of God or the public enemy. *(Hulett*v. *Swift,*33 *N. Y. Rep.*571.) In *Q-ile*v. *Libby (supra)*it was decided that proof of loss or larceny from the guest’s room is alone sufficient proof of carelessness on the part of the defendant; and that is the correct rule. In the case at bar, however, the court went the extreme length of submitting it to the jury, not only whether the plaintiff was negligent, but also whether or not the defendants were guilty of negligence, charging that if the defendants were not negligent they were not liable. The verdict establishes that the plaintiff was not negligent, and that the defendants were negligent. It should not be disturbed.

*By the Court,*Robertson, Ch. J.

The defendants would clearly not have been liable' in this case if the property lost by the plaintiff came within the provisions of the act of 1855, relative to hotel keepers, *(N. Y. Sess. Laws,*1855, *p.*774;) or he made a contract with them not to hold them responsible for such property if not deposited in their safe; or he was guilty of negligence, which contributed to the loss.

The statute of 1855 is very general in its language. By it the proprietors of a hotel are exempted from liability for “the loss of any money, jewels or ornaments, sustained” by a guest at such hotel when not deposited by him in a safe to be provided by such proprietor in a convenient place for their safe keeping, in case he has posted in a conspicuous manner in the room occupied by such guest, a notice stating that such safe is provided, in which such money, jewels or ornaments may be deposited. It was undoubtedly passed to protect and limit the common law liability of hotel keepers, and authorized, probably, no more than they had a right to do, in order to protect themselves, without any statute. At common law they were liable to *366their guests for their loss of money, to the extent of enough to cover their traveling expenses, of wearing apparel of personal ornaments, but not, as this court has recently had occasion to hold, ( *Wilkins*v. *Earle, 3 Rob.*352,) for all the property brought by them to the hotel, unless notice was given to the keeper of it, or he assumed its safe keeping. The statute limits its applicability to money, jewels and ornaments. The plaintiff’s watch hardly came under either of the latter designations, unless its value was far beyond that of those ordinarily carried by travelers and was greatly enhanced by jewels, with which it might be ornamented. It is an article worn for constant use, almost as necessary by night as by day. Carried by a man, it could hardly be said to be a mere ornament, as it is generally concealed from view. . The chain, also, may be a necessary appendage, and could only rank as jewelry or ornaments, where its value or fashion exceeded that of one worn for mere use. So, too, the statute must bear a reasonable construction as to money. It is not to be expected that a man should deposit every cent he has about his person in the safe provided for it. Various emergencies may arise for the immediate use of money, in small sums, at all hours, which might make it inconvenient to require constánt applications to have the safe opened to obtain it. He must certainly be entitled to carry with him to his bed chamber at night as much as would meet those contingencies—a reasonable sum such as a prudent man would keep. This would not necessarily be his whole traveling expenses, and it was for the jury to say what such reasonable sum was. The case of *Gile*v. *Libby,*(36 *Barb.*70,) recently decided by the Supreme Court, general term of this district, is directly in point, and although I may not concur in adopting to its full extent the standard laid down in that case for determining what should be deposited, under the statute of 1855, or in considering it a question of law only, I agree that such statute is not to be construed strictly, and admits of a reasonable exception. It must be assumed, in this case, that fifty dollars *367was a reasonable sum for the plaintiff to retain with him > *as*no request was made to submit that question to the jury.

I do not think the notice printed at the head of each page of the register of the defendants, under which guests register their names, can be converted into a contract, without proof that the plaintiff’s attention was called to it, and he signed his name with intent to be bound by it. Similar notices, on passengers’ tickets or carriers’ receipts, have been held not to constitute contracts, without some express adoption of their terms by the holders. Indeed, it may be doubted whether such a contract would be upheld; *(Kirkman*v. *Shawcross,*6 *T. R.*17, *per Lord Kenyon. Cole*v. *Goodwin,*19 *Wend.*269, *Cowen,*J.)

The only question which remains is that of the supposed contributing negligence of the plaintiff, in not fastening the door of his room, as well as the fanlight over it. I do not think that, as matter of law, the court was bound to hold that omitting to fasten the latter, was negligence, particularly as the counsel for the defendants admits it was too small to admit of any person entering; and the question of concurring negligence was "submitted to the jury. In the absence of direct evidence, it was a matter" for them to determine> whether the key could be turned from the outside, or whether the plaintiff used the fastenings of the door to secure it or not, or as he testified, he locked it, whether it was negligence not to bolt it. I do not know that any inspection of the fastenings would enable the court to pronounce more authoritatively, as matter of law, on their security.

It is true the defendants may have furnished every material means for enabling the plaintiff to protect himself against marauding, but in so large an establishment the use of a watchman would probably be worth as much as all the other means; and in this case there was no evidence of that precaution having been taken.

Such cases may be hard upon hotel keepers, particularly" *368as they are at the mercy of the oath of the party complaining; but the remedy, if any where, is with the legislature, not the courts. ■ •

The judgment in this case must, therefore, be affirmed, with costs.