
    Louis G. Hart, Respondent, v. North German Lloyd Steamship Company, Appellant.
    
      Steamship company—liability of, for a passengers baggage — when his failure to close a porthole or to loch his stateroom door will not bar a recovery by the pgssenger for stolen articles — stipulation for judgment absolute, on an appeal, to the Appellate Division allowed, by the Appellate Term.
    
    The owners of a passenger steamship are responsible for the loss of the personal baggage of a passenger, unless the loss was caused by the act of God or by a public enemy.
    
      
      It seems, that a passenger on -an ocean steamship, who, in the early morning while the vessel is in port, leaves his shirt containing studs and sleeve buttons banging on a hook twelve,or fourteen inches distant, from a porthole located twelve or fourteen feet above the water, and then goes ashore, without locking the door of his stateroom or closing the porthole therein, is not guilty of such negligence as will, in the event of the studs and sleeve buttons being missing on his return to the ship, prevent his recovering the value ■ thereof from the owners of the steamship.
    In any event, such negligence (if it be negligence) on the- passenger’s part will not bar a recovery where it appears that during his absence the steward of the . vessel entered the stateroom, observed' the position of the shirt, studs and sleeve buttons, the open porthole and the unlocked door, and after performing his duties therein, left the stateroom without touching the shirt, closing the porthole or locking the door, as in such a case the loss of the studs and sleeve buttons must be attributed to the negligence of the steward in the respects mentioned and not to that of the passenger in those respects.
    While the Appellate Term of the Supreme Court has power, as a condition of allowing an appeal to the'Appellate Division from a determination of the Appellate Term reversing a1 judgment of the Municipal Court of the city of New York, "to require the appellant to file a stipulation for judgment absolute in the event of the affirmance Of the determination, if the Appellate Term allows such an appeal, without requiring the filing of such a stipulation, the , Appellate Division, in the event of the affirmance of the determination, is without power to award judgment absolute.
    Appeal by the defendant, the North German Lloyd Steamship Company,.from an order of the Appellate Term of the Supreme Court, reversing a judgment of the Municipal -Court of the city of New York, borough of Manhattan, in favor of the defendant, and granting a new trial of the action.
    
      Joseph Larocque, Jr., for the appellant.
    
      Ernest A. Cardozo, for the respondent.
   Ingraham, J.:

The action was brought in the Municipal Court of the city of New York upon a written complaint which alleged that the defendant, a foreign -corporation having an office in the city of New York, owned, - controlled and operated steamships between New York and various foreign ports; that the plaintiff’s assignor, a citizen of the United States, was a passenger upon one of the defendant’s steamships from Italy to New York; that on the 31st _of March, 1903, while said steamship was in the harbor of Naples, Italy, during such voyage, by the carelessness and negligence of the defendant, its officers, servants and employees permitted or suffered some person or persons, unknown to the plaintiff’s assignor, to enter his stateroom on said steamer and take therefrom certain articles of personal baggage, to wit, two studs set with diamonds and rubies and one pair of gold sleeve buttons set with diamonds of the fair and reasonable value of $225; that said personal baggage was lost "or stolen without any fault or negligence on the part of the plaintiff’s assignor and solely through the negligence of the defendant.

The answer admits that the plaintiff’s assignor was a passenger upon the steamer and that the defendant undertook to carry him and other passengers from Italy to New York, together with such baggage and personal effects as he should deliver to the defendant for such transportation; and denies the other allegations of the complaint, and alleges that if said articles or any of them were lost by Harrison, such loss occurred solely by reason of said Harrison’s own carelessness and negligence; and the answer also sets up a special contract by which Harrison, the plaintiff’s assignor, agreed that the defendant would not be liable for loss of or injury to, or delay in delivery of the baggage or personal effects of the said Harrison beyond the amount of $100.

Upon the trial it was proved that Harrison occupied a stateroom on one of the defendant’s steamers; that on the morning of March 31, 1903, the steamer was in the port of Naples ; that he had kept the porthole closed during the night and that to the best of his recollection it was closed when he left the room in the morning; that he left his stateroom early in the morning and went ashore and did not return until the afternoon; that on entering the stateroom on his return he found the door open and hooked "back and the porthole open ; that the studs had been torn from the bosom of his shirt and that the sleeve buttons were also missing; that he did not see any steward enter his room until after he left in the morning and that he at once reported his loss to the steward, the first officer and the captain of the steamer. Upon cross-examination he stated that these studs and sleeve buttons were in a shirt which was hanging upon a hook about twelve or fourteen inches from the porthole, and when he left his stateroom in the morning he did not lock the door. The valet was called and testified that he saw the shirt with the studs in it on the morning of the thirty-first of March when he went into the stateroom to awaken the plaintiff’s assignor, and that when he returned in the afternoon he saw the shirt lying upon the sofa in the room with the studs and sleeve buttons gone; and that when he went into the stateroom in the morning the porthole was closed. On behalf of the defendant, the steward who had charge of the stateroom occupied by the plaintiff’s assignor testified that on the morning that these articles were lost he went to the stateroom as usual between nine and ten o’clock; that when he entered the room the porthole was open and- plaintiff’s assignor’s evening shirt was hanging on a hook to the left of the porthole and that there were some studs in it; that the steward did not close the porthole, as it was customary to allow the room to be aired in the morning; that'the porthole was twelve or fourteen feet above the water, and was about ten inches in diameter, and that he did not touch the shirt or studs, and left everything in the room as he found it.

Upon this testimony the court found that the plaintiff’s assignor was guilty of negligence arid awarded judgment for the defendant. The Appellate Term (46 Mise. Rep. 426) reversed this judgment and ordered a new trial, and from that determination the defendant appeals.

I agree with the Appellate Term that there was no evidence to justify a finding that the plaintiff’s assignor was guilty of negligence. There was no evidence that the plaintiff’s assignor opened the porthole . or left it open when he left his stateroom. Portholes upon steamers are under the control of the officers of the ship and not of the passengers. The steward of the ship, when he went into the room to clean it up, noticed the shirt and studs there and that the porthole was open. It Was his duty to protect the passenger’s baggage, and if it was negligence to leave the porthole open or. the door unlocked, Under the circumstances, it was his negligence in not closing them.

But there is no evidence to show that the open pprthole had any relation to the loss of these articles. It was twelve or fourteen feet above the water, and it is extremely1 improbable that any one from the outside could have secured these articles through the porthole. The shirt was not taken, but was left upon a sofa in the room. If these articles had been talcén through the porthole the shirt would, have also been taken, as it was quite impossible for any one outside of the ship to remove the studs and sleeve buttons and leave the shirt in the room. I do not think it was negligence for the plaintiff’s assignor when he left his room not to lock the door. But, assuming that he should have locked .it, when the steward went in to fix up the room he saw that the door was open, and if it was necessary to lock the door to secure the baggage of the passengers, it was his duty to lock it. It was thus the failure of the steward to lock the door or close the porthole afte.r he had finished cleaning up the room which caused the loss, and not the failure of the passenger to lock the door when he left the room in the morning.

It is now settled in this State that the owners of a passenger steamship are responsible for the personal baggage of a passenger, unless the loss was caused by the.act of God or of public enemies. (Adams v. New Jersey Steamboat Co., 151 N. Y. 163.) Judge O’Brien, delivering the opinion in that case, says: “ The traveler who pays for his. passage and engages a room in one of the modern floating palaces that cross the sea or navigate the interior waters of the country, establishes legal relations with the carrier that cannot . well be distinguished from those that exist between the hotelkeeper and his guests. The carrier in that case undertakes to provide for all his wants, including a private room for his exclusive use, which is to be as free from all intrusion as that assigned to the guest at a hotel. The two relations, if not identical, bear such close analogy to each other that the same' rule of responsibility should govern.” Such being the relation, and there being no evidence to sustain a finding that the plaintiff’s assignor was guilty of negligence which had any relation to the loss that he sustained, I think the court below was right in reversing the judgment.

The plaintiff claims that upon an affirmance of the order granting a new trial he is entitled to judgment absolute, but as the appeal was allowed without a stipulation as to judgment absolute, this court is without power to do more than to "affirm the determination appealed from.' Upon an appeal from an order of the Appellate Term reversing a judgment of the City Court of the city of New York and ordering a new trial, section 3191 of the Code of Civil Procedure requires that the appellant shall file a stipulation that the respondent should have judgment absolute if the order is affirmed ; but there was no such provision in relation to an appeal from an order of the Appellate Term ordering a new trial in an action tried in the Municipal Court of the city of Mew York. An appeal to this court from a determination of the Appellate Term.is regulated by section 1344 of the Code of Civil Procedure. The justices holding the Appellate Term could have required as a condition of allowing the appeal that the appellant should file such a stipulation, but the. justices of the Appellate Term having allowed the appeal without requiring such stipulation to be filed, the appeal was regular, and there being no stipulation for judgment absolute, we are without authority to order it.

It follows that the determination appealed from should be affirmed^ with costs. . '

O’Brien,. P. J., Patterson, Laughlin and Clarke, JJ., concurred.

Determination affirmed, with costs.  