
    Nellie Jones, Appellant, v. The Hotel Latham Company, Respondent.
    (Supreme Court, Appellate Term,
    April, 1909.)
    Inns and innkeepers — Loss of, and injury to, property of guest — Deposits for safe-keeping — 'Jewels and ornaments — What are not.
    The statute limiting an innkeeper’s liability where a safe is provided for the safe-keeping of “ money, jewels or ornaments ” is to be strictly construed; and a chain, a purse and a rosary, being all articles of use, not worn for ornament, are not within the statute.
    In an action against an innkeeper to recover damages for the loss of the articles mentioned, where the court does not find that the articles were lost through the negligence of the guest, it is error to dismiss the complaint.
    Appeal by the plaintiff from a judgment rendered in the Municipal Court of the city of Hew York, ninth district, borough of Manhattan, dismissing the complaint at the close of the plaintiff’s case.
    Lindsay, Kalish & Palmer (H. J. Conant, of counsel), for appellant.
    Kaulfuss & Callahan (Arthur E. Kaulfuss, of counsel), for respondent.
   Lehman, J.

The complaint sets forth that, without negligence oh the part of the plaintiff, a watch, chain, rosary and purse owned by her of the value of $420 were stolen from the room occupied by her in the defendant’s hotel; these allegations are denied. The allegation of the complaint that the plaintiff, at the time in question, was a guest of the hotel, was admitted; and no denial was made of the allegation that the defendant was the keeper of a common inn. The answer set up: (1) The providing of a safe for keeping such articles as were described and the posting of a notice thereof of which the plaintiff had notice; (2) that no special agreement was made for the safe-keeping of these articles; (3) that, whatever property the plaintiff lost, was lost solely by reason of her negligence, without negligence on defendant’s part.

At common law, the innkeeper was liable as an insurer of the safety of his guest’s property, unless its loss occurred through the negligence of the guest. The statute modifying the common law liability must be strictly construed. This court has carefully considered the statute in the case of Briggs v. Todd, 28 Misc. Rep. 208, recently cited in Waters & Co. v. Gerard, 189 N. Y. 302. In accordance with the construction placed upon the statute in that case, the innkeeper’s liability has been modified only as to “ money, jewels or ornaments and a watch is not a jewel or ornament within its meaning. By analogy, a chain, a purse and a rosary, being all articles of use and not worn for ornament, are also not within the statute. Since the court did not find that plaintiff’s testimony showed that the loss was due to her negligence, but, in dismissing the complaint, stated: “ You must prove circumstances from which you can predicate negligence. She says she noticed a card which set forth that the hotel provided a safe for safe-keeping,” the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

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