
    LEOPOLD BERNSTEIN, Plaintiff and Respondent, v. DANIEL SWEENY, Defendant and Appellant.
    A proprietor of a house or hotel, kept on what is called the “European plan,” i. e., the renting of rooms, with a restaurant for meals, is “ the proprietor of a hotel,” within the meaning of the Act of 1855; Session Laws, chapter 421.
    Where a guest at the hotel entered his name on the register under a printed heading, as follows: “ Money, jewels, and other valuable packages, it is agreed, shall be placed in the safe in the office, otherwise, the proprietor shall not be responsible for any loss,” and there was no proof that this notice was seen or assented to by the guest;—Held, that it was not his contract.
    A watch and chain are not within the meaning of the statute, a jewel or ornament, for the loss of which a hotel proprietor is not liable, but is protected under the statute. The cases of Ramaley v. Le- ' land (6 Bolt. 358); Hyatt v. Taylor (42 N. T. 258); and the same case in the court below, (51 Barb. 632); also, Gile v. Libby (36 Barb. 70); cited and commented upon in support of the above propositions.
    Before Monell, McCunn, and Freedman, JJ.
    
      Decided April 1, 1871.
    Appeal from a judgment in favor of plaintiff against defendant, for the value of a watch and chain, stolen from plaintiff at the defendant’s hotel.
    The deféndant was the proprietor of “ Sweeny’s Hotel,” in this city. The house was kept on what is called the “European plan,” i. e., the renting of rooms, with a restaurant for meals.
    The following notice was put up in each of the rooms:
    NOTICE.
    
      ‘ ‘ Guests are respectfully notified that a safe has been provided, and is kept in the office of this hotel, for the safe-keeping of any money, jewels or ornaments belonging to them, that such money, jewels and ornaments may be deposited in said safe, and that unless so deposited, the proprietor will not be responsible for their loss.
    6 ‘ This notice is given under and pursuant to the law..
    “ D. SWEENY,
    Proprietor.”
    The plaintiff had been a frequent guest at the house.
    In July, 1868, he arrived at the hotel and entered his name on the register of the hotel, under a printed heading at the top of the page, as follows :
    
      “ Money, jewels and other valuable packages, it is agreed, shall be placed in the safe, in the office, otherwise the proprietor shall not be responsible for any loss.”
    He was assigned a room, and with his consent, another person was put into the same room. In the morning on awakening, he found the room door open, the other,person gone, and his watch, chain, and diamond shirt studs missing. They were valued at four hundred and fifteen dollars.
    On the trial before Mr. Justice Fithian and a jury, the defendant’s counsel moved to dismiss the complaint on the following grounds :
    
      First. That the defendant’s place of business was not an hotel or inn, but a lodging house, and therefore, the defendant was not liable for the alleged loss under the evidence given.
    
      Second. Because the defendant had a safe to place jewels, ornaments, and other valuables in the office, and had put up notices of such fact in the room in which the plaintiff lodged, and the plaintiff was negligent in not placing the articles alleged to be lost in the safe.
    
      Third. That the plaintiff, by his signature in the book of arrivals, agreed to place the valuables, etc., alleged to have been lost, in the safe, and that the defendant should not be liable if the valuables were not so placed.
    The justice overruled the motion on all the grounds, and the counsel for the defendant excepted.
    The court charged the jury that the plaintiff could not recover for the diamond shirt studs, but could recover for the watch and chain, such articles not being jewels or ornaments. He also charged that there was no evidence, that the plaintiff saw, or intended to be bound by the printing at the top of the register, but left it to the jury to say whether there was any such contract agreed to by the plaintiff.
    The defendant requested the judge to charge the jury,
    
      First. That the defendant is not liable for the loss of the articles claimed for, if the defendant had at the time of the alleged loss a safe for the safe-keeping of “ money, jewels, and personal ornaments,” and gave notice thereof by putting the same in a conspicuous place in the room. The justice refused to charge in that form, or other than as he had charged, and the counsel for said defendant excepted to such refusal.
    
      Second. The defendant is not liable for the loss if he so provided a safe, and put up such notices, even although the defendant put in another person in the same room, if the defendant had no reason to suppose that the person so put in the room was dishonest. The justice refused so to charge in that form, or other than as he had charged, and the counsel for said defendant excepted to such refusal.
    The defendant excepted to the charge, and appealed from the judgment.
    
      Mr. F. Byrne, for the appellant, defendant.
    
      Mr. S. Hirsch, for the respondent, plaintiff.
   By the Court.—Monell, J.

The cases of Wintermute v. Clark, 5 Sandf. 247, and Taylor v. Monnot, 4 Duer, 116, are sufficient authority for us to hold the defendant responsible, as the “proprietor of a hotel f within the meaning of the act of 1855, Sess. Laws of 1855, ch. 421.

There was no error in the instruction to the' jury in respect to the notice printed at the head of the register. There was no proof that it was seen or assented to by the plaintiff, and without such proof, it was not his contract (Ramaley v. Leland, 6 Robt., 358). Besides, the court left it to the jury to say whether the plaintiff had agreed to it.

So far as the facts in this case oorrrespond with those in Hyatt v. Taylor, 43 N. Y. 258, we are controlled by that decision. That case involved a construction of a Hew Jersey statute, which like our statute, relieved proprietors of hotels from liability, for the loss of “ money, jewels or ornaments,” when the proprietors had provided a safe for the deposit of such articles. The articles which had been stolen were, “money, two gold studs and two gold pens,” and two of them, namely, the money and gold studs, were very properly regarded as being within the letter of the statute. But the court did not, in terms, decide that gold pens, a part of the property lost, were either jewels or ornaments.

The principal question, which engaged the attention of the court in that case, was whether the true construction of the act, did not confine the liability of hotel proprietors to sums of money, in excess of what was a needful amount for the ordinary traveling expenses of the guest; and, therefore, the other articles alleged to have been taken, were not considered by the court.

In the case before us, the articles for which the plaintiff had a recovery were a “ gold watch and gold chain.”

Statutes in derogation of the common law are to be strictly construed,' and not extended beyond their express words or clear import (Millered v. Lake On. An. & N. Y. R. Co., 9 How. Pr. 238 ; McCluskey v. Cromwell, 11 N. Y. 593), and the question in this case is, whether the articles, for which a recovery was had, are included, in the terms or meaning of the statute.

In two cases (Ramaley v. Leland, supra, and Gile v. Libby, 36 Barb., 70), it has been held that such articles are not among those enumerated in the statute ; and in the uncertainty in which ihe question is left by the decision in Hyatt v. Taylor, we should, I think, follow those cases.

I am aware that in the opinion in the court below, in Hyatt v. Taylor (see 51 Barb., 632), language is used which seems necessarily to bring these articles within the definitions of “jewels or ornaments,” and no discrimination is made in giving effect to the statute between those articles and “money.” But while the learned justice, who delivered the opinion below, held that a landlord is not responsible for the loss of the “money and things” of Ms guests, he also admitted that the legislature intended to give to the former, protection only to the extent of the language used. And Mr. Justice Woodruef, in the appellate court, says (p. 261) there is nothing in the statute itself indicating any intent other or less extensive than the unequivocal language imports.

While it is borne in mind that in Hyatt v. Taylor, the only question was, whether a guest could recover for the loss of a greater sum than was found needful for his traveling expenses, it will readily be seen that no other or further construction of the statute was necessary, than would enable the court to decide that question.

So far then as that case goes, the question in tMs case may be considered as open, and may, therefore, rest upon the authority of the two cases already cited.

I will merely add in its support, the definition of “jewels” taken from Webster, “an ornament of dress in which the precious stones form a principal part.”

As a conclusion, I am of opinion that a watch and chain are not, within the meaning of the statute, a jewel or an ornament, for the loss of which a hotel' proprietor is protected by the statute.

The judgment should be affirmed.  