
    PETER CLASSEN, Plaintiff and Appellant, v. JACOB LEOPOLD et al., Defendants and Respondents.
    
      [Decided December 31, 1870.]
    An innkeeper (where no question of statutory law is involved) will he discharged from liability for the loss of a guest’s goods when it is attributable to the negligence, fault, or fraud of the guest, or to the act of God or the public enemy.
    Non-compliance by the guest with a reasonable requirement of the innkeeper is such negligence on his part as to exonerate the innkeeper from a loss caused thereby.
    This is the point ruled in Purvis v. Coleman (31 N. Y., p. 111). But the mere giving to, and acceptance by, the guest of the key of his chamber does not impose on him any duty or obligation to keep the door thereof locked.
    If, under such circumstances, the guest, on retiring for the night, omits to lock the door of his room and permits it to remain unlocked during the night, such omission and permission does not constitute such negligence as to relieve the innkeeper from liability for a theft of the guest’s goods from his room during the night.
    In an action ex delicto brought by a guest against an innkeeper to recover damages for the loss of his goods while such guest, the innkeeper cannot set off a claim for board due him by the guest; he may, however, recoup such, claim against any damages the guest may recover against him, but he cannot have a balance certified in his favor.
    If the guest recovers no damages, the innkeeper can have judgment for the costs of the action only.
    Before Monell, McCunn, and Jones, JJ.
    Appeal from a judgment.
    The case was tried before Judge Ebeedman and a jury. The action was brought to recover for a watch and chain and two dollars in money, claimed to have been stolen while the plaintiff was stopping at defendants’ hotel.
    The plaintiff arrived at the Hotel Jegel on the 9th of December and stayed there until the 18th. During this time, to wit, on the 13th, the proprietorship of the hotel was changed, the defendants then becoming the proprietors. He intended to remain some time and engaged a room, but made no bargain as to the length of time he should occupy the room, or the price to be paid. On the night of the 17th he retired to bed, putting his vest, having his watch in the watch-pocket and the guard chain attached to one of the vest button-holes, on a small table in front of the bed. In the vest-pockets were two dollars.,'
    On the morning of the 18th he arose, dressed, and went down stairs to the hotel dining room to take his breakfast. Either during his breakfast or just after finishing it he desired to ascertain the time, but on attempting to take out his watch he found it was gone.
    This was the first intimation he had that it was missing.
    There was a lock on the door of this room which the plaintiff occupied, and he had the key. At first he locked the door at night, but finding that he got the chills by getting up in the morning to unlock the door so as admit the fireman to make, the fire, he adopted the practice of leaving the door unlocked at night. This practice was not communicated to the proprietors.
    In the course of the trial it appeared that plaintiff wasindebted to the proprietors for a board bill and refreshment.
    The court dismissed the plaintiff’s complaint, and gave defend.ants judgment for the amount of the board bill.
    Upon this decision judgment was entered for defendants for -the amount of the board bill and costs.
    A motion was made for a new trial, which was denied.
    The present appeal is from the judgment and from the order ■denying the motion for a new trial.
    
      Mr. Charles Wehle for appellant.
    'The judge erred in taking the case from the jury, as there was sufficient evidence to go to the jury.
    The evidence proved conclusively that the defendants were hotel and inn keepers.
    . An inn has been judicially defined as “ a house where the traveller is furnished with everything which he has occasion for whilst on his way ” (Thomson v. Lacy, 3 B. & Adol., 283, 286; vol. 2, Parsons on Contracts, 5th ed.).
    A sign is evidence of an inn (Parker v. Flint, 12 Mod., 254).
    
      A public house of entertainment for all who choose to visit it is the true definition of an inn (2d vol. Parsons on Contracts, 5th ed., page 145, note K; Taylor v. Mounot, 4 Duer, 116; 1 Abb., 325; Wintermule v. Clark, 5 Sandford; Willard v. Rhinhorat, 2d ed., Smith, 148), and an arrangement as to price does not change this rule.
    The goods of the plaintiff having been lost or stolen while he was a guest of defendants at their inn, they are liable.
    The innkeeper is an insurer of the property committed to his custody by a guest.
    Unless the loss is due to the culpable negligence or fraud of the guest, or the act of God, or the public enemy (Hulett v. Swift, 33 N. Y., 571).
    An action lies against an innkeeper for goods lost or stolen from his inn without proof of negligence (Clute v. Wiggins, 14 Johnson, 175; McDonald v. Edgerton, 5 Barb., 560).
    Loss implies negligence.
    In an action against an innkeeper to recover the value of property lost by a guest, proof of the loss or larceny of the goods from the room in which he lodges is sufficient proof of carelessness on the part of the defendants (Gill v. Libby, 36 Barb., 70).
    He is answerable to a guest for the dishonesty of a fellow guest.
    The watch, chain, and a reasonable sum of money for travel-ling expenses are not such articles as a guest is bound to deposit in a safe provided under the act of 1855, and the landlord will be liable for the loss of such things from the guest’s room, notwithstanding his notice that a safe has been provided (Gill v. Libby, 36 Barb., 70).
    In this case no notice was posted in the room.
    The leaving the door unlocked was not such negligence on the part of the plaintiff as to excuse the defendants or absolve them from their liability.
    While it is a good defense that the loss was caused by the cidpable negligence or fraud of the owner, it is not enough that he (the guest) exercised some choice as to the room where they should be placed or that the key of the room was delivered ■ to him. ' The owner may still recover, even if he does not use the key, but leaves the door unlocked (vol. 2. Parsons on Contracts, 5th ed., pages 148, 149; Martin v. New Jersey Steamboat Co., 7 Abb., N. S., 237; Hulett v. Swift, 33 N. Y., 571).
    It is submitted from the foregoing facts and the uncontra dieted evidence and the law applicable to the case, that the jndge committed an error in taking the case from the jury, and that the judgment ought to be reversed and the cause sent back for a new trial.
    The judge erred in directing a verdict for the defendant, and on the so-called counter-claim, because the action is for- the tort, and the so-called counter-claim did not arise out of the transactions set forth in the complaint as the foundation of the plaintiff’s claim, nor is it connected with the subject of the action (Ashens v. Hams, 3 Abb., 187; Pattison v. Richards. 22 Barb., 146; Gotler v. Babcock, 7 Abb., 392, n. 1; Donohue v. Henry, 4th ed., Smith, 162; Kensie v. Farrell, 4 Bosw., 193).
    
      Mr. Martin L. Townsend for respondents.
    It is the duty of a guest stopping at a hotel to use the ordinary means furnished by his landlord to protect his property from theft.
    This is a rule of common sense, and is founded upon the rule which exonerates an innkeeper from liability where the loss is occasioned by the fault or negligence of the guest, or where the negligence of the guest contributes to the loss:
    It was an act of negligence on the part of the plaintiff to leave the door of his sleeping-room unlocked when he retired to bed for the night, which act contributed to the loss.
    There was a lock upon the door, and the plaintiff had previously been in the habit of locking it when he retired for the night.
    
      This lock was made for use, and it is the ordinary appliance to a door to prevent ingress to á room by thieves.
    No prudent man would leave the door of his sleeping-room unlocked during the night at a hotel (especially in a large city like New York). The common experience of every one who has travelled teaches better.
    This act of negligence on the part of the plaintiff exonerated the defendants from liability.
    It is not essential, in order to relieve the landlord, that there should be gross negligence on the part of the guest. It is enough that the plaintiff’s negligence caused or contributed to the loss (Story on Bailments, § 472; Fowler v. Dorlon, 24 Barb., 388; Purvis v. Coleman, 21 N. Y. R., 111; Ashill v. Wright, 6 El. & Bl., 890).
    The dictum in Cayle’s case (8 Co. R., 32), “ that it is no excuse for the innkeeper to say that he delivered the key of the chamber in which the guest is lodged to him, and that the guest left the chamber door open,” is not the rule of law in the light of modern cases and the customs and habits of the people.
    The modern doctrine is that a guest is bound to use the means provided for him by the landlord for his own protection; and that his omission to use such means is negligence; and that such negligence exonerates the landlord from liability.
    In Story on Bailments (Bennett’s ed., p. 404, note 2, § 472) it is said, citing Ashill v. Wright (supra): “ The rule of law resulting from all the authorities is that the goods remain under the charge of the innkeeper, and the protection of his inn, so as to make the innkeeper liable as for a breach of duty, unless the negligence of the guest occasion .the loss in such a way as that the loss would not have happened if the guest had used the ordinary care which a prudent man may be reasonably expected to have taken under the circumstances.”
    In Fowler v. Dorlon (supra), Harris, J., says: “ It is enough to exonerate an innkeeper if the guest has by his own neglect or imprudence exposed his goods to peril.”
    In Purvis v. Coleman (supra), the Court of Appeals hold, that the negligence of the plaintiffs exonerated the defendants from liability, and say (per Davies, J.), “that the ground of the defendant’s liability has always been likened to that of a common carrier,” * * * and that “ it is the well-settled law of this State, that if the plaintiff’s negligence has caused or contributed to the loss or injury, an action cannot be maintained.”
    There was no error in the court directing a verdict for the amount of defendant’s counter-claim. This was admitted by the proof on the trial, and was not put in issue by the pleadings.
   By the Court:

Jones, J.

It was not contested at the argument (as indeed it could not well have been), but that defendants were innkeepers, and the plaintiff was their guest.

But on behalf of the defendants it was urged that the not locking the door was an act of negligence on the part of the plaintiff, and that the loss is attributable to that negligence, and therefore the defendants were not liable.

On the part of the plaintiff it was claimed that the not locking the door was not an act of negligence, or if it was, it was not such negligence as relieved the defendants from liability.

It was also claimed that in no aspect could a judgment for the board bill be had in this action.

These respective claims present the only matters that were argued and submitted for the decision of the court.

It may now be considered the law of this State (where no question arising out of statutory law is involved), that an innkeeper will be discharged from liability for a loss when it is attributable to the negligence, fault, or fraud of the guest, or to the act of God, or the public enemy, and perhaps to superior force; and that it is only in these exceptional cases that he can be discharged (Hulett v. Swift, 33 N. Y., 574; Purvis v. Coleman, 21 N. Y., 111).

This I understand to be also the common law of England (Moore, 78, read in connection with Saunders v. Spencer, Dyer, 266 B., Cayle’s case, Coke, 8th part, p. 63, 4th vol.).

The question, however, is, what constitutes such negligence in the guest as will discharge the innkeeper ?

It was long ago held in England that a plea to the effect that the innkeeper required the guest to lay his goods in a certain room within the inn under a lock and key provided for that purpose, and warned the guest that if he would do so he would warrant them safe, otherwise not, but that notwithstanding the guest laid them at loose in an open court where they were stolen by his own default, was good on demurrer to the plea.

On a former occasion defendant’s counsel endeavored to raise the point by demurrer to the evidence, but the court put him to nis plea that the loss was occasioned by the fault or negligence of the plaintiff (Moore, 78).

He did so plead with the result as shown in Dyer, where it was held that the non-compliance by the guest with a reasonable requirement of the innkeeper was such negligence on his part as to exonerate the innkeeper from a loss caused thereby.

This is the point ruled in Purvis v. Coleman, supra.

The precise point presented in the case at bar is whether the bare fact that the guest receives a key of his bedchamber and omits to make use of it, constitutes such fault or negligence on his part as to relieve the innkeeper from liability for goods stolen from the room while the door was unlocked.

In Gayle’s case (cited supra) it was distinctly held that it did not.

In Maule v. Selwyn (4th vol., p. 306), although the innkeeper was relieved upon considerations not here appearing, yet the rule in Gayle’s case was fully approved.

Gayle’s case has not, thus far, been overruled or questioned in this State.

Hor do I perceive any reason why it should be.

The doctrine of the case was, that the sole object of the giving to, and acceptance by the guest of the key of his chamber (there being no attendant circumstances to show a different one), was to enable him to secure privacy at his pleasure; that the entrance of thieves or suspicious characters into the inn without the knowledge or consent of the innkeeper, was to be provided against by the outer door, which was under the care and control of the innkeeper, and which it was his duty so to keep, so as to prevent such entrance; while as to those guests who obtained admission with the knowledge and consent of the innkeeper, as well as to the servants, it was his duty to see that they were not thieves or suspicious characters, and if he entertained doubts as to their character to take proper precautionary measures to preserve his other guests from loss; and that guests had a right to rely on the faithful performance of these duties by the innkeeper, and to believe that they might repose in security in their chambers with unlocked doors, and that no necessity existed for locking the doors except for the purpose of securing privacy when they might desire it.

There is no reason to be derived from the present state of society, civilization, travel, and commerce, why the doctrine should not still hold good.

The only reason why a guest should be held guilty of negligence in not locking his door is because it is easier to rob a room the door whereof is unlocked, than one the door of which is locked. This reason existed at the time of Gayle’s case, and it is no more apparent to courts and guests at this present day than it was then.

I fully concur in the opinion of Judge Porter (Hulett v. Swift, 33 N. Y., p. 573), that the considerations of public policy in which the rules fixing the liabilities of innkeepers for the loss of a guest’s goods had their origin, forbid any relaxation of this rigor.

Upon the facts of this case I think the plaintiff is entitled to recover; and that the complaint was erroneously dismissed.

The remaining question is, whether the defendants can in any way use in this action the board bill due from plaintiff.

The complaint is as follows :

“ The plaintiff, for a cause of action against the defendants, in and by this his complaint alleges and avers:
First.—That at the times hereinafter mentioned the defendants were copartners in the business of hotel and inn-keeping in the city of Hew York, and were the keepers of a common inn in the said city of Hew York, known as the Hotel Jegel, situated at Ho. 47 Barclay street in said city.
“Second.—That on or about the 13th day of December, 1868, this plaintiff was received by the said defendants into their said inn as a traveller and guest, with baggage containing his clothing,
Third.—That the defendants and their servants, so negligently and carelessly conducted' themselves in regard to the same that while he so remained at said inn as a guest as aforesaid, and on or about the night of the 17th of December, 1868, the said room of the plaintiff was entered by some person or persons to this plaintiff unknown, and a valuable gold watch, the property of this plaintiff, together with a gold chain and two dollars in United States currency was taken away from the said room, and thereby the same became wholly lost to the plaintiff, to his damage of $212, and the interest on the same from the 17th day of December, 1868.
“ Wherefore the said plaintiff demands judgment for the sum of two hundred and twelve dollars, with the interest on the same from the 17th day of December, 1868, besides costs of suit.”

The defendants by their answer allege:

“Fifth—The said plaintiff is justly indebted to them for board and lodging during the time he continued at their house in the sum of $22.76, which sum they claim to recoup or set off against any claim the said plaintiff may establish against them on the trial of this action.”

The complaint is in form an action ex delicto on the case (1 Chitt. Pl., pp. 132-134; 2 Chitt. Pl., p. 668).

The defendants, therefore, cannot set off the board bill. They have not pleaded it as a counter-claim. But they can recoup it. They occupy the position of bailees of the goods; and the principle of Hoy v. Reed, decided by the General Term of this court (Stearns v. Marsh, 4 Denio, p. 227, and Edwards on Bailment, p. 213), is applicable.

But as a recoupment they can only have it go in reduction of such damages as plaintiff obtains; they cannot have a balance certified in their favor.

The judgment in favor of defendants for the board bill was erroneous.

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