
    Louis Schneps, Appellant, v. Abraham Sturm, Respondent.
    (Supreme Court, Appellate Term,
    November, 1898.)
    Negligence — Care of valuables by proprietor of a five-cent bathing-house — Contributory negligence.
    The proprietor of a five-cent bathing-house, having a bathing tank used in common by all customers and under the general supervision of a manager who was patrolling the place, is not liable to a regular weekly bather, who placed his clothes as usual upon a bench in the bathing-room, for the loss of jewelry and m’oney which he left in his clothes while he was taking a bath, it appearing that the proprietor had fully performed such duties towards his customers as he had undertaken to perform.
    
      The failure of the bather to deposit his valuables with the proprietor, as he might have done and had before done, constitutes contributory negligence upon his part.
    Appeal from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Yew York, borough of Manhattan, fifth district.
    Jacob Rieger, for appellant.
    Joseph Wilkenfeld, for respondent.
   Beekman, P. J.

The plaintiff sues to recover the value of a watch and chain, a diamond ring and some $55 in money, which he alleges were stolen from his clothes in the defendant’s bathing establishment while he was in the bath, and he charges the defendant with negligence in omitting to exercise proper care for the protection of his property.

Doubtless there did rest upon the defendant the duty of showing some degree of care in the matter, measured by what a person of ordinary care would do under similar circumstances and conditions. Bird v. Everard, 4 Misc. Rep. 104. What that might be is ordinarily a question of fact for the jury, or the court where the . latter is the trier of the facts. In the case at bar the trial was had without a jury, and as the justice has found for the defendant upon the merits, we must assume the facts of the case to be as they were testified to by him and his witnesses.

From this point of view it appears that the defendant was at the time of the occurrence the proprietor of a bathing establishment at Yo. 99 Attorney street in this city. The equipment consisted of a single bathing tank used in common by all who resorted to the place. Yo lockers were provided, but each bather placed his clothes upon a bench provided for the purpose in the bathing-room; and it was the duty of an employee of the defendant, styled the manager, who had general charge of the place, to exercise supervision over the bathroom and its contents. Whenever requested so to do the manager would receive from customers such articles as they might wish to deposit for special care. The charge for a bath, which covered all privileges, was five cents. The plaintiff had been a weekly customer of the defendant for a year, and on at least one previous visit had deposited his valuables with the defendant. On the day of the loss complained of he entered the place, and instead of specially depositing the articles in question, or informing the defendant’s manager that he had them in his clothing, he voluntarily placed his clothes upon the bench, in a place of his own selection. It was while he was in the bath that, as he alleges, the theft took place. The proof shows that a number of people were using the bathing tank at the time; that their clothing was also deposited upon the bench, and that the manager was patrolling the place and supervising the bathing-room.

There is no evidence showing how the loss occurred. The fact that there was a loss rests upon the evidence of the plaintiff that he had these things in his clothes when he went into the bath, and that they were not there when he came out. Such were the facts, .as presumably the justice below found them to be, and it certainly cannot be said that they did not amply support his conclusion that there was no negligence on the part of the defendant, or at least that there was no preponderance of evidence in support of the charge.

The defendant’s duty was measured by what he undertook to do. The accommodations he afforded and the extent of protection which he gave were all known to those who frequented his place, and in accepting what was offered, they must be deemed to have been satisfied with it. It was that and that alone which they paid for, and the measure of defendant’s obligation to them was the caréful . observance of that which the facts show he assumed to perform. The court cannot say that he should have provided lockers or an increased number of employees, catchers or detectives. He did not contract to'do so, but for a very small sum agreed with his.patrons to furnish what they deemed to be an equivalent in the advantages, such as they were, which he offered. The court below has found that the duties which he so assumed were not negligently performed, and as there is sufficient evidence to support such a conclusion, the judgment will not be disturbed by us.

We think also that the plaintiff was guilty of contributory negligence in placing his valuables in such an exposed place, and in not depositing them with the defendant for safe-keeping, as he had' previously done. That he deliberately refrained from doing so , seems to be established by the testimony of two apparently disinter- ‘ ested witnesses, to whom he mentioned his loss, and who stated that when they asked him why he had not deposited the property in question as he had done before, he replied that he wanted to use the place only for a short time. Having failed to avail himself of a means of protection afforded by the defendant, which ordinary prudence required him to adopt, he was himself guilty of negligence which in itself was sufficient to bar a recovery. The judgment below, dismissing the complaint, was right, and should be affirmed.

Gildebsleeve and Giegebich, JJ., concurred.

Judgment affirmed, with costs.  