95 N.Y.S. 1051 | N.Y. App. Div. | 1905
The recovery was for the value of a watch, chain and charm left by the plaintiff in his vest, which he placed on a pile of clothing on a table in the defendant’s store while trying on a new vest with a view to purchasing the same. The plaintiff was acquainted with a salesman, in the employ of the defendant. When he called at the store this salesman was engaged in waiting on another customer,
The recovery was had and is sought to be sustained upon the theory that this constituted a bailment of the plaintiff’s vest, and that-it was temporarily in the custody of the, defendant at the time that it, together with its- contents, was stolen. It is manifest that- it became -necessary for the plaintiff to remove his vest in order to, try' on the one he intended to purchase.. The evidence fairly warranted the inference that he exercised, such care over his vest under thé circumstances as a person .of ordinary prudence would have exercised in view of the fact that his attention was necessarily diverted in selecting and trying on.the new vest.'. It could not, therefore, be held .as matter of law that he was guilty of any contributory-neglect in this regard. The salesman denied that he directed the plaintiff where to place his vest, but the question of fact has been resolved in favor of the plaintiff.
It is contended, however, that although the defendant might be liable as custodian of 'the vest it is not liable as custodian of the watch.- The chain and charm were worn in the usual manner outside the vest. It does not appear whether or not they were exposed to the view of the defendant’s salesman. We agree with the majority of the Appellate Term that it is common knowledge .of which the court may take judicial notice that men ordinarily during business, hours wear their watches, in .their vests. . The watch: was' not of an unusual value, and it cannot be said, as matter of jaw, that the plaintiff was guilty Of negligence in leaving it in the vest
We are of opinion, therefore, that the determination was warranted and should be affirmed, with costs.
O’Brien, P. J., and Patterson, J., concurred; Ingraham and Clarke, JJ., dissented.
Determination affirmed, with costs.