
    Eugene Battelle and Charles R. Hurd, Partners, Trading under the Firm Name and Style of Battelle, Hurd & Company, Respondents, v. Mercantile Warehouse Company, Appellant.
    First Department,
    July 7, 1910.
    ■Warehouseman — loss of goods by theft—facts not showing negligence.
    A warehouseman from whom goods were stolen by burglars at night cannot be , charged'with negligence in failing to employ a watchman in the interior of the building and to maintain burglar alarms, if such were not the custom of the trade, and he did employ a night watchman in common with other merchants and warehousemen in the vicinity.
    Nor is such warehouseman bound to anticipate that burglars would gain entrance to the building by ascending to the roof of a neighboring tenement house, driving spikes into the side of the warehouse so as to ascend to the roof and then breaking open a wooden structure which was nailed up and fastened ■ with a padlock.
    Nor can negligence be predicated upon the fact that the door of the structure on the roof was fastened by a padlock on the outside for, had it been on the inside, the burglars would not have been prevented from breaking through.
    Appeal by the defendant, the Mercantile Warehouse Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 29th day of January, 1910, upon the verdict of a jury for $1,216.74, and also from an order entered in said clerk’s office on the 27th day of January, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Frederick R. Graves, for the appellant.
    
      George Gordon Battle, for the respondents.
   Miller, J.:

This is an action to recover the value of certain goods stored by the plaintiffs with the defendant for hire and which were stolen by burglars. The plaintiffs specified three grounds of negligence: (1) That the defendant failed to employ any watchman ; (2) that it did not maintain a burglar alarm in its’ warehouse; (3) that it did not properly secure the warehouse against forcible entry. It appeared that the defendant did employ a night watchman in com. mon with other merchants and warehousemen in the vicinity of its warehouse; that it was not customary for warehouses to employ any watchman on the inside or to. maintain burglar alarms in their warehouses. We do not think that the failure to employ all inside watchman or to maintain burglar alarms in the warehouse justified a finding of negligence, causing the loss complained of. It is evident that the plaintiff mainly relies upon the third ground specified. ’

The defendant’s warehouse was fifteen feet higher than an adjoining tenement house. The burglars secured entrance to the tenement house and from the roof of the tenement house ascended to the roof of the defendant’s warehouse by means of spikes which they drove into the wall of the warehouse. Upon the roof of the warehouse there was a small wooden structure, over the elevator shaft which was covered with tin and tarred over. There had once been a door in this wooden structure which, however, had been nailed up and was fastened on the outside by a padlock. The burglars battered- down this door and slid down the elevator cables to . the top floor, of the building. It is claimed that the defendant was negligent for not fastening the door of the elevator house on the inside, but it is difficult to perceive how that would have prevented burglars from knocking the door down. Moreover, it seems to us that the defendant was not called upon to anticipate that burglars would gain entrance to’ its building in the manner disclosed.

The plaintiffs rely on the case of Faucett v. Nichols (64 N. Y. 377). That was an action against an innkeeper for the loss of a guest’s horses, carriage and harness, caused by the burning of the defendant’s barn. At common law the defendant was an insurer, but by statute was permitted to absolve himself from liability by showing that the fire was the work of an incendiary and occurred without his fault or negligence. There was: evidence tending to show that the fire was the work of an.incendiary who gained access to the hay loft through a window opening into an alley, and that there was a pile of lumber under the window so that a person could easily climb upon it and enter the window. The court-did say that that furnished some evidence of negligence, but it is to be noted that the judgment for the plaintiff in that case was reversed for errors in the exclusion of evidence. We think that that case is not applicable to the facts disclosed in this case.

To say the least, the burglary was an unusual one, and we think that the evidence fails to show that the defendant omitted any precaution which may reasonably be said to have furnished the occasion or opportunity for its commission.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Ingraham,'P. J., Laughlin, Clarke and Scott, JJ., concurred.

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