
    Bird v. Everard.
    (New York Common Pleas
    General Term,
    June, 1893.)
    The proprietor of a bathing establishment who receives from his patrons the sum demanded for the privilege of a bath, and assumes the custody of their wearing apparel while the latter are enjoying the privileges thereof, becomes a voluntary custodian of the patrons’ apparel for profit, and is bound to exercise due care to guard against loss or theft by others having access to his establishment with his permission; for any loss or theft which could have been prevented by the exercise of such care, said proprietor is answerable in damages.
    Appeal from a judgment for plaintiff recovered in a District Court in the city of New York.
    Action to recover the valué of an overcoat lost or stolen from plaintiff’s room, while a guest at defendant’s bathing establishment.
    
      A. 3. Alker, for plaintiff (respondent).
    
      Devoid M. 3euberger, for defendant (appellant).
   Per Ourievm.

Plaintiff sued to recover the value of an overcoat which he claimed was purloined from the room assigned to him for the purposes of disrobing, while a guest at defendant’s Russian and Turkish bath establishment in the city of New York. It seems to have been conceded on the trial, that plaintiff left defendant’s establishment several hours after he entered it, without an overcoat answering the description of the one he complained to have been taken from his room, and that he had it with him when he entered the room appears very clearly from his testimony, which is amply corroborated by that of his witness Goodwin. An effort was made on defendant’s part to discredit plaintiff and Goodwin by the testimony of several of defendant’s witnesses to the effect that when they entered defendant’s establishment both plaintiff and Goodwin were in such a state of inebriety as to be wholly unconscious of each other’s dress' or appearance. A second effort on the part of defendant was to show that the room assigned < to plaintiff was so constructed as to admit of no means of ingress except by the door of which plaintiff was furnished the key. Upon the conflict of evidence which ensued in both particulars, the record presents no such preponderance in defendant’s favor as will enable us to say that the trial justice’s adverse determination was error.

From the very nature of the accommodations afforded by defendant’s establishment it seems entirely clear that while plaintiff was absent from the room assigned to him, and in the bath, his apparel, deposited in the room, was in defendant’s keeping. The assignment of the room for the purposes of disrobing was in effect a representation by defendant that he would assume the custody of plaintiff’s apparel at that place.

Having received the sum demanded of plaintiff for the privilege of the bath, and assumed the custody of plaintiff’s apparel while the latter was enjoying the privilege, defendant became a voluntary custodian of plaintiff’s apparel for profit, and was bound to exercise due care to guard it against loss or theft by others having access to defendant’s establishment with his permission; and for any -loss or theft which could have been prevented by the exercise of such care defendant was answerable in damages. Bunnell v. Stern, 122 N. Y. 539.

Assuming that there was no sufficient evidence of defendant’s want of care when plaintiff rested, the error, if any, presented by the exception taken to the trial justice’s denial of defendant’s motion for dismissal of the complaint at that stage of the trial was cured by evidence subsequently introduced on behalf of either party (Painton v. North. Cent. R. Co., 83 N. Y. 7) ; and upon the evidence as it was finally submitted to the trial justice, the conclusion is irresistible that the loss or theft of plaintiff’s overcoat could have been prevented had defendant, in view of the indiscriminate admission of persons as patrons of his establishment, employed one or more competent persons to guard against such occurrences. His onus-, sion to do so was want of ordinary care, and his want of ordinary care was negligence.

The only defense which was attempted on the trial was that plaintiff did not have an overcoat answering the description given with him when he entered defendant’s establishment to secure the bath, and when this failed, a judgment for plaintiff was the inevitable result.

Evidence of what plaintiff paid for the overcoat was competent, and, in the absence of other proof, sufficient to establish the value of the overcoat at the time of its loss. Hoffman v. Conner, 76 N. Y. 124; Campbell v. Woodworth, 20 id. 499; Wells v. Kelsey, 37 id. 143 ; Hangen v. Hachemeister, 114 id. 566, 572 ; Jones v. Morgan, 90 id. 4, 11.

The judgment appealed from should he affirmed.

Judgment affirmed.  