
    Mary E. Mortimer, Appellant, v. Henry L. Otto and J. Frank Howard, Doing Business under the Firm Name and Style of The Troy Van and Storage Company, Respondents.
    Third Department,
    January 4, 1911.
    Bailment—warehousemen — lease of particular room for storage—liability where goods were stored and destroyed in another building.
    Warehousemen who, having leased- a specific room for the storage of certain property, on receiving the same stored it in another building in a different locality where it was destroyed by fire, are liable for the loss. By so doing the bailees converted, or made an unauthorized use of the- property, and must respond in damages for the loss of the property while thus improperly used.
    Appeal by the plaintiff, Mary E. Mortimer, from a judgment of the County Court of Rensselaer county, entered in the office of the cleric of said county on the 20th day of .April, 1910, upon the . dismissal of the complaint by direction of -the court at the close, of plaintiff’s case.
    
      Ransom H. Gillet, for the appellant.
    
      Charles I. Webster, for the respondents.
   Cochrane, J.:

Plaintiff and her daughter leased of the defendants, who are warehousemen, a specific room in a building in the. city of Troy for the purpose of storing' therein certain personal property and delivered to the defendants said property for the purpose of depositing and storing the same in said room. The rent of the room was two dollars and fifty cents a month. Defendants in violation of their duty stored the property in a building in a different locality, where the same was destroyed by fire. Plaintiff is the assignee of her daughter’s interest in the property destroyed, and brings this action to recover the value, thereof. The County Court dismissed the complaint on the ground that the case presented simply a breach of contract by the defendants which was not the proximate cause of the loss of the property and that the fire, which was such proximate cause, was not within the contemplation of the parties when they made their contract.

The case presents a question of bailment. The contract of the bailees was to redeliver on proper demand the property of the bailors. This they have failed to do. Plaintiff as a part of her case proved the cause of such failure, viz., the destruction of the property by fire in a place where it was the duty of the bailees not to have the property. In o Oyc. 212, it is stated. as follows: “ A right of action accrues to the bailor where the subject-matter of the bailment has been used differently from what was intended or the bailee fails to deliver over or redeliver in accordance 'with his contract ; where the bailee has been guilty of such a want of care witli ■ respect to the subject-matter of the bailment that the bailor is damaged thereby ; where the bailee has departed from the terms of the bailment or the instructions of the bailor.” If this be a correct exposition of the law the liability of the defendants follows. The point of distinction between this case and many of those cited by the respondents is that here the property was devoted or applied to an improper or unauthorized use by the bailees. If they had loaned or leased it or used it for their own purposes and it had been stolen or destroyed, clearly their liability would follow. For their convenience or greater profit or other reasons undisclosed they failed to deposit it in the room which the bailors had hired and which, for the purposes of this case must, therefore, be regarded as their own and placed it elsewhere. The bailees must, therefore, be regarded in the same light as if they had converted or made an unauthorized use of the property and must.respond in damages for the loss sustained thereto while thus improperly used.' (Collins v. Bennett, 46 N. Y. 490 ; Disbrow v. Tenbroeck, 4 E. D. Smith, 397; Buchanan v. Smith, 10 Hun, 474.) The English case of Lilley v. Doubleday ,(L. R. 7 Q. B. Div. 510) seems to be a ease undistinguishable from this in its facts and directly in point in favor of plaintiff.

The learned county judge was probably misled by the statement of plaintiff’s counsel that he sought to recover damages for breach of contract. He did not, however, limit himself to that ground of recovery, and the allegations of the complaint are sufficient to warrant a recovery on any theory consistent with-the facts.

The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgmen't reversed and new trial granted, with costs to appellant to abide event.  