110 Misc. 670 | N.Y. App. Term. | 1920
The plaintiff went to the defendant’s restaurant, “Whyte’s,” on Fulton street, for lunch. He says he did not notice the hat-and-coat rack, in charge of a check boy, at the Fulton street entrance, by which he entered. He was escorted to a table, and either a waiter, or one of the assistants to the head-waiter, who have come to be known as “ captains,” helped him take off his overcoat, and took his hat and overcoat and hung them up on a hook on a post. The precise location of the hook in relation to plaintiff’s chair was not fixed by the plaintiff. He did say, however, that it was 1 ‘ nearby. ’ ’ One of the defendant’s “ captains” testified that plaintiff told him that the coat ‘ ‘ was hanging on the rack on the post at his right hand, right where he was sitting,” and there was no rebuttal as to that. It would seem as if plaintiff must have seen the coat and hat as they were put on the hook. At least, he knew somehow that the coat and hat were placed on the same hook. It would also seem to be beyond doubt that the coat was at all times within his reach, or within a few feet of him, and possibly within his view. The
The respondent does not question the doctrine of the Wentworth case, but he seeks to have the distinction drawn that there the coat was at no time in the physical possession of an employee of the restaurant. I think the point is merely tenuous. Judge Seabury did, in the Wentworth case, refer to the fact there present that none of the restaurant people ‘ ‘ ever saw, much less received,” the coat. But that was ob
For the reasons • stated I advise that the judgment be reversed, and that the complaint be dismissed.
Lehman and Finch, JJ., concur.
Judgment reverse*!, with thirty dollars costs.