
    George A. Wies, Respondent, v. The Hoffman House of New York, Appellant.
    (Supreme Court, Appellate Term,
    June, 1899.)
    Innkeepers — Construction of chap. 305, Laws of 1897 — Loss of silver-mounted traveling bag — Cost and value.
    
      SemUe, that, the statute (Laws of 1897, chap. 305) exempting an innkeeper, from liability for the loss of money, jewels or ornaments, in case he provides a safe for their keeping and posts proper notices, is not so much to be construed as limiting his liability as it is to charge the guest with negligence in case he does not avail himself of the protection afforded.
    An innkeeper, in the absence of proof of fraud or negligence, is liable to a guest, for the theft, from his locked room, of a traveling bag, internally finished with a silver mounted toilet' set and other silver articles, and containing a suit of clothes.
    The cost price of stolen articles, although some evidence of value, is not a conclusive measure thereof, but becomes controlling when coupled with proper proof that the market for goods of that kind is stable and that they do not rapidly depreciate in value.
    Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the City of Hew York, first district, borough of Manhattan.
    
      James E. Gaynor, for appellant.
    Alexander R. Gulick and George W. Olvany, for respondent.
   Leventritt, J.

This is an action by a guest against an innkeeper to recover damages for loss of property.

On December 8, 1898, the plaintiff and his wife registered at the defendant’s hotel and were duly assigned to a room. Their baggage consisted of a steamer trunk and a traveling bag containing toilet articles. During their absence from the hotel on the following evening the traveling bag and contents, together with some wearing apparel were stolen. Prior to their departure the plaintiff had locked the room and handed the key to the night clerk. There was no proof of fraud or negligence on the part of either litigant.

The plaintiff claimed that the value of the lost property was $310.25, in which sum he prayed judgment. On this proof he was awarded $275 and the defendant appealed.

The common-law rule defining the liability of an innkeeper to his guest for the loss of property given in his custody as that of an insurer has been steadily and firmly upheld by our courts and the latest cases, even as the earlier ones, make him absolutely liable, without proof of any negligence on his part, for all losses occasioned from any cause other than the act of God or the public enemy. Hulett v. Swift, 33 N. Y. 571; Adams v. New Jersey Steamboat Co., 151 N. Y. 163; Metzger v. Schnabel, 23 Misc. Rep. 698. It is only the fraud or negligence of the guest that can relieve him of responsibility. Purvis v. Coleman, 21 N. Y. 111; Fowler v. Dorlon, 24 Barb. 384; Hyatt v. Taylor, 42 N. Y. 258. The statutory provisions exempting the innkeeper from liability for the loss of money, jewels or ornaments where he provides a safe for their keeping and posts the requisite notice in conspicuous places on the premises (Laws of 1855, chap. 421; Laws of 1897, chap. 305) are to be construed not so much as limiting or modifying his liability as insurer but as making the guest chargeable with negligence if he omits to avail himself of the means of protection afforded. The innkeeper is still strictly an insurer; but a failure by' the guest to comply with the statute on his part will be such negligence as will defeat the enforcement of liability.

In the case at bar the fact of the loss was not disputed, and as there was no suggestion of fraud or negligence, the only question remaining for our consideration is whether there was sufficient proof of the value of the property lost to support the recovery.

The stolen items comprised a suit of clothes valued at $60; a pig skin traveling bag containing a silver mounted toilet set, valued at $165; and other silver articles, valued at $85.25.

The defendant moved for the dismissal of the complaint on the ground that the evidence introduced to establish value was insufficient because it was limited to the cost price. The motion was properly denied. While the evidence of purchase price standing alone may be inadequate to establish the value of the property at the time of its loss (O’Neill v. Patterson, 26 Misc. Rep. 3; Hoffman v. Hand, id. 370), it is a well-settled rule that cost price furnishes some evidence of value. Campbell v. Woodworth, 20 N. Y. 499; Wells v. Kelsey, 37 id. 143; Hoffman v. Conner, 76 id. 121; Hawver v. Bell, 141 id. 140. The proper measure of damage is the market value of the goods (Parmenter v. Fitzpatrick, 135 N. Y. 190; Markoe v. Tiffany & Co., 26 App. Div. 95), that is, the value of the goods in the market open to the party sustaining the loss. The rule contemplates compensation sufficient to replace the goods, and cost price, therefore, frequently constitutes one step towards the proof of market value.

In the case at bar the plaintiff introduced testimony to establish the identity of cost price with market value. After he and his wife had testified as to the price paid for each article, and the condition of each when stolen, the salesman in the employ of the Gorham Manufacturing Company, from whom the bag and silver articles had been bought, swore that the market for that class of goods had remained stable, that such wares did not generally depreciate within the period of time that they had been in plaintiff’s possession, and that from their described condition they were at the time of trial worth the purchase price. On the question of the value of the clothes, the plaintiff’s testimony was substantiated by statements of the tailor who had made the garments. He had seen the suit shortly prior to its disappearance and he testified positively as to their value at that time.

On the whole case the court would have been justified in granting a recovery for the full amount claimed. Sitting as a trier of the facts it estimated the market value on the evidence adduced at $275, thus making ample allowance for depreciation by wear and tear. We should not interfere with that proper disposition of the cause.

Rbeedman, P. J., and MacLean, J., concur.

Judgment affirmed, with costs to respondent.  