
    Edward Swan, App’lt, v. Charles Smith et al., Resp’ts.
    
      (New York Common Pleas,
    
    
      Filed January 3, 1887.)
    
    Negligence—Lodging-house keeper.
    The defendant kept a bathing-house, the upper floors of which were let in apartments to lodgers; one of these rooms the plaintiff occupied. The hall door which gave access to the office of the bath-house was the approach to the stairway that led to the floor on which plaintiff’s room was situated. This door was generally left, unlocked, though probably intended to be; closed. As a matter of convenience, the plaintiff, with full knowledge of this fact, kept the door unlocked. The room was entered, by whom it does not appear, and some of plaintiff’s clothing taken therefrom. He now seeks to recover its value, on the ground that the loss was caused by the negligence of the defendant in suffering the hall door to remain unlocked. Held, that there is authority that a lodging-house keeper like the defendant does not assume responsibility for the goods of his lodgers, as he does not take them in his custody. Also, that if defendant was bound to take the same care of plaintiff’s property as a prudent person takes of his own, yet that plaintiff was guilty of negligence, and therefore defendant was not liable.
    
      E. Swann, for app’lt; M. Hoyt, for resp’ts.
   Per Curiam

The defendant kept a bathing house, the upper floors of which were let in apartments to lodgers. The plaintiff, with a room-mate, occupied one of the rooms. The hall door which gave access te the office of the bathhouse was the approach to the stairway that,led to the floor on which the plaintiff’s room was situated. That hall door was generally left unlocked, though it was probably the intention of the defendant to have it kept closed. The plaintiff knew that the, hall door was almost always open. There was a spring lock on the door of the plaintiff’s rqom which effectually locked the room, but for purposes of convenience the plaintiff inserted something in the lock that prevented it from working, and enabled either the plaintiff or his room-mate to get into the room without the trouble of unlocking the door. The friends of the plaintiff and of his room-mate also entered the room at pleasure. The defendants had some mechanics at work in the house, and about that time the plaintiff missed some clothing that was hung up in his room. Who took it does not appear, but the plaintiff seeks to recover its value on the ground that the loss was caused by the negligence of the defendant in leaving, or suffering the servants to leave, the hall door unlocked.

There is authority for holding that a lodging house keeper like the defendant does not assume responsibility for the goods of his lodger, as he does not take them into Ms custody. Edwards on Bailments, sec. 477; Smith v. Read, 6 Daly, 33; see observation of Judge Leow on page 35; Kent’s Commenteries (13th ed.), vol. 2, marg., 596.

But conceding that the defendant was bound, as a lodging house keeper, to take the same care of the plaintiff’s property that a prudent person takes of Ms own, the defendant, nevertheless, was entitled to judgment in his favor. The plaintiff complains that the defendant did not keep the hall door locked, and yet he Mmself left the door of his own room unlocked. If the defendant were guilty of negligence, so was the plaintiff, for he left his room open, knowing that persons from the street could enter the house and pass up the stairway without being seen by any one in the office. Even were the defendant an inn-keeper he would not be liable if the negligence of the plaintiff had conduced to the loss. Armistead v. Welde, 17 Q. B. 2, 261; see citation from Kent, supra.

The duty of the plaintiff—a duty the performance of which was essential to his right of action—was to use the ordinary care that a prudent man is expected to take under the circumstances; and the justice was right if he held that the plaintiff was lacking in ordinary care in leaving his door unlocked when he knew that the hall door was also open to all who chose to enter.

The judgment should be affirmed, with costs.  