Barnes v. Stern Bros.

151 N.Y.S. 887 | N.Y. App. Term. | 1915

Shearn, J.

The judgment appealed from held the defendant liable for a sum of money ($185) alleged to have been stolen from the clothing of the plaintiff while he was a customer in the defendant’s store. Plaintiff, having selected a suit for purchase, tried on the coat and vest and then, at the invitation of the salesman, in order to try on the trousers, went into a dressing-room, put on the new trousers there and, leaving his old trousers in the dressing-room, went with the salesman to the fitter who was located on the same floor. When plaintiff returned to the dressing-room he found that his wallet, containing $185, which he had left in the pocket of his trousers, was missing. The trousers were still there.

At the time defendant was conducting a special sale. There were a large number of customers present and the sales force had been increased for the occasion. There were but four dressing rooms, which were in constant demand. These rooms were not locked, and it was the custom for both salesmen and customers to open the doors to find out if the rooms were already in use. In the dressing-room just above the mirror about six and one-half feet from the floor there was a sign reading: V Hot.responsible for customers’ garments or other property unless left at credit desk on this floor. ’ ’ There was a place on that floor, the credit desk;; referred to on the sign, where valuables might be left for safe keeping. ...

It is not claimed that plaintiff at any time before discovering his loss informed the salesman or any other representative of defendant that a wallet containing a large sum of money was in his trousers pocket and concededly defendant had no knowledge whatever that plaintiff had this money on his person or that he had left it in the dressing-room.

Plaintiff’s' recovery is based by his counsel upon two propositions stated as follows: “ That there was a.bailment of the plaintiff’s clothing and its contents into the temporary safe, keeping of the defendant and that. the. defendant was negligent in the execution of this bailment, without any contributory negligence on the part of the plaintiff.”

While it is clear that there was a bailment of the plaintiff’s clothing, necessarily laid aside on the invitation of the defendant, and that the fact would have warranted a finding of negligence on the part of the defendant had the clothing been stolen, it seems equally clear that there was no bailment of plaintiff’s wallet and the sum of $185 contained therein. There was no delivery of the money to the defendant. The defendant did not voluntarily assume or obtain custody of the money. Neither did the defendant, expressly or impliedly, invite a surrender of plaintiff’s money into its custody, except by' the sign requesting that valuables be left at the credit desk. In the absence of knowledge that plaintiff had left the money in the dressing-room and in the absence of an invitation, either express or implied, so to do, there could be no bailment. Wentworth v. Riggs, 159. App. Div. 899; Pattison v. Hammerstein, 17 Misc. Rep. 375; McAllister 1 Simon, 27 id. 214; Powers v. O’Neill, 89 Hun, 130; Wamser v. Browning, King & Co., 187 N. Y. 87.

Plaintiff contends that there was an implied invitation to leave the pocketbook in the dressing-room, on the authority of cases holding that what one must necessarily lay aside in a store while making or examining his purchase he is invited to lay aside. Bunnell v. Stern, 122 N. Y. 539; Woodruff v. Painter, 150 Penn. 91. But this begs the question. While it was necessary for the plaintiff to lay aside his trousers in the dressing-room, there was no necessity whatever for his leaving his pocketbook in the dressing-room. In fact, plaintiff did not intimate in his testimony that this was necessary, and accounted for it by the frank statement: “ It never appealed to me at the time about my having my pocketbook in my pocket. It never came to my mind at all.” Paraphrasing Mr. Justice Seabury’s language in the Wentworth Case, 79 Misc. Rep. 403, 406, 407: “ If he wished to deposit the wallet and money in the exclusive possession of the defendant he should have availed himself of the accommodations which the defendant provided for that purpose. If he had done this, the defendant would have been liable.” The contents of the pockets not having been disclosed to the defendant or to any of the clerks in its employ, and it having been entirely unnecessary and a mere piece of forgetfulness on plaintiff’s part that the pocketbook was left in the dressing-room, no case of liability was made out. To extend the rule appertaining to garments necessarily laid aside in a store to any and all articles and sums of money secreted within the garments, of which the store keeper and his agents have no knowledge whatever, would impose an unjust and burdensome liability upon merchants and hold out an invitation to fraudulent claims against which a storekeeper would be absolutely defenseless.

Judgment should be reversed, with costs, and the complaint dismissed upon the merits, with costs. .

• Guy and Pendleton, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.