
    Tony Wamser, Respondent, v. Browning, King & Co., Appellant.
    First Department,
    November, 1905.
    Bailment—liability of shopkeeper for property of customer which is stolen on the premises.
    A shopkeeper is a voluntary custodian for profit of clothing and a watch attached thereto taken off by a customer who is trying on other clothing, and the customer may recover the value thereof if stolen, in the absence of proof of proper care by the shopkeeper.
    Ingraham and Clarke, JJ., dissented.
    Appeal by the defendant, Browning, King & Co., from an order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the Appellate Term on the 6th day of April, 1905, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, entered on the 29tli day of November, 1904.
    
      Clarence E. Thornall, for the appellant. '
    
      Max Schleimer, for the respondent.
   Laughlin, J.:

The recovery was for the value of a watch, chain and charm left by the plaintiff in his vest, which he placed on a pile of clothing on a table in the defendant’s store while trying on a new vest with a view to purchasing the same. The plaintiff was acquainted with a salesman, in the employ of the defendant. When he called at the store this salesman was engaged in waiting on another customer, but, on being informed, by the plaintiff that he desired to purchase a particular kind of vest, the salesman, according to the testimony' of the plaintiff, directed him to where the vests were, and also directed him to take off his vest and place it upon the pile- of clothing and select and^try on a vest. The salesman at the same time informed plaintiff that he would be there shortly to wait on him. The plaintiff was accompanied by another 'gentleman, and they together proceeded to where the new vests were.: The. plaintiff, according to his evidence, removed his vest and placed it where he had been directed by the salesman and proceeded to select and try on a new vest. Within a few minutes the salesman- came to wait on him. When the plaintiff was' ready to put on his vest again, which he had placed on the pile of. plothing, it was missing and could hot, be found-.

The recovery was had and is sought to be sustained upon the theory that this constituted a bailment of the plaintiff’s vest, and that-it was temporarily in the custody of the, defendant at the time that it, together with its- contents, was stolen. It is manifest that- it became -necessary for the plaintiff to remove his vest in order to, try' on the one he intended to purchase.. The evidence fairly warranted the inference that he exercised, such care over his vest under thé circumstances as a person .of ordinary prudence would have exercised in view of the fact that his attention was necessarily diverted in selecting and trying on.the new vest.'. It could not, therefore, be held .as matter of law that he was guilty of any contributory-neglect in this regard. The salesman denied that he directed the plaintiff where to place his vest, but the question of fact has been resolved in favor of the plaintiff.

It is contended, however, that although the defendant might be liable as custodian of 'the vest it is not liable as custodian of the watch.- The chain and charm were worn in the usual manner outside the vest. It does not appear whether or not they were exposed to the view of the defendant’s salesman. We agree with the majority of the Appellate Term that it is common knowledge .of which the court may take judicial notice that men ordinarily during business, hours wear their watches, in .their vests. . The watch: was' not of an unusual value, and it cannot be said, as matter of jaw, that the plaintiff was guilty Of negligence in leaving it in the vest without drawing the attention of any of the defendant’s employees thereto. That was a question of fact upon the evidence, and it has been resolved in favor of the plaintiff and we are not disposed to interfere with the finding. The express invitation to the plaintiff to remove.his vest fairly embraced an invitation to leave in it the watch, chain and charm which he was wearing, they not being of exceptional or of unusual value. We are of opinion that the case falls fairly within the doctrine of Bunnell v. Stern (122 N. Y. 539) where it was held that a shopkeeper is the voluntary custodian for profit of a garment taken off by a customer while trying on a new garment, and that as such he was bound to show the exercise of some care in guarding the property. In the case at bar it appears that there were other salesmen in the store and various customers. Ro evidence was offered in behalf of the defendant tending to show that it made or promulgated any rules with reference to the custody or supervision over the garments of customers necessarily laid aside while trying on new clothes, or that it employed a floor walker or gave any instructions to its employees to exercise any care or supervision over such property or that any such care' or supervision was' exercised by any of its employees.

We are of opinion, therefore, that the determination was warranted and should be affirmed, with costs.

O’Brien, P. J., and Patterson, J., concurred; Ingraham and Clarke, JJ., dissented.

Determination affirmed, with costs.  