Plaintiff, visiting defendant's restaurant on New Year's Eve, 1925, left a fur coat of the value of $850 at the check room, receiving the usual check therefor. She was not questioned as to the value, and did not state it. The court charged the jury in effect that the plaintiff should have a verdict for the full value of the coat if the jury believed that the defendant had been negligent in caring for it. The question is whether liability has been limited by statute.
The case involves the construction of section 201 of the General Business Law (Cons. Laws, ch. 20), as amended by Laws of 1924, chapter 506. The whole section must be quoted, but for convenience the part directly applicable is printed in italics:
"No hotel keeper except as provided in the foregoing section shall be liable for damage to or loss of wearing apparel or other personal property in the room or rooms assigned to a guest for any sum exceeding the sum of five hundred dollars, unless it shall appear that such loss occurred through the fault or negligence of such keeper, nor shall he be liable in any sum exceeding the sum of one hundred dollars for the loss of or damage to any such property when delivered to such keeper for storage or safekeeping in the store-room, baggage room or other place elsewhere than in the room or rooms assigned to such guest, unless at the time of delivering the same for storage or safekeeping such value in excess of one hundred dollars shall be stated and a written receipt, stating such value, shall be issued by such keeper, but in no event *Page 108 shall such keeper be liable beyond five hundred dollars, unless it shall appear that such loss occurred through his fault or negligence, and such keeper may make a reasonable charge for storing or keeping such property, nor shall he be liable for the loss of or damage to any merchandise samples or merchandise for sale, unless the guest shall have given such keeper prior written notice of having the same in his possession, together with the value thereof, the receipt of which notice the hotel keeper shall acknowledge in writing over the signature of himself or his agent, but in no event shall such keeper be liable beyond five hundred dollars, unless it shall appear that such loss or damage occurred through his fault or negligence; as to propertydeposited by guests or patrons in the parcel or check room of anyhotel or restaurant, the delivery of which is evidenced by acheck or receipt therefor and for which no fee or charge isexacted, the proprietor shall not be liable beyond seventy-fivedollars, unless such value in excess of seventy-five dollarsshall be stated upon delivery and a written receipt, stating suchvalue, shall be issued, but he shall in no event be liable beyondone hundred dollars, unless such loss occurs through his fault ornegligence."
The defendant maintains that where property is deposited in a parcel or check room without statement of value or delivery of the prescribed receipt, there is a limit of liability to $75 for loss from any cause. Disclosure of the value, if followed by a receipt, will extend liability for fault or negligence up to the limit of the value stated, though even then the liability, if any, as insurer will be $100 and no more. The plaintiff on her side maintains, and the courts below have held, that the exemption from liability in excess of $75 where the value is not disclosed, is not to be read as a limitation of liability for loss from any cause, but is confined to losses not due to the fault or negligence of the proprietor.
We think the defendant's construction is the true one, *Page 109 however clumsy and inartificial may be the phrasing of the statute. A limitation of liability affecting merely the measure of recovery is applicable, if not otherwise restrained, to loss for any cause (D'Utassy v. Barrett, 219 N.Y. 420, 424;Boyle v. Bush Terminal R.R. Co., 210 N.Y. 389, 392). The final words of the section, "unless such loss occurs through his fault or negligence," are to be confined to the limitation of $100 immediately preceding. They do not relate back to the beginning and modify all that follows. The sense of the words and the order of the clauses would lead to this conclusion as a matter of verbal or grammatical construction though the provision as to check rooms were one standing by itself. The construction is confirmed when the provision is read in conjunction with the provisions immediately preceding it as part of a connected plan. The guest at an inn who delivers goods to the innkeeper for storage or safekeeping in a place other than his room must state the value of the goods and procure an appropriate receipt. If he fails to do this, the liability of the innkeeper is limited to $100. In no event, however, is there to be liability in excess of $500 except for fault or negligence. There are similar provisions in respect of liability for merchandise samples or merchandise for sale. From the beginning of the section to the end, the exemption from liability in excess of the prescribed maximum is absolute where value is concealed. Only where value is stated and a receipt delivered is the exemption made dependent upon freedom from negligence or other fault.
Argument is made that the statute is unworkable and meaningless. Proprietors of restaurants who are informed of the value and give a receipt are to have the benefit of a $100 limitation if fault or negligence is not established. In that contingency, however, they do not need a limitation. The common law does not charge them with an obligation approaching that of an insurer. The argument overlooks the fact that the statute is not *Page 110 aimed at the protection of proprietors of restaurants exclusively. Another purpose, and indeed the chief one, if we may judge from the preceding exemptions of the section, is the protection of innkeepers, whose liability to guests is absolute, with exceptions not here important, under the rule at common law. For the purpose of the new exemption, proprietors of inns and proprietors of restaurants are grouped as a single class. If they have been guilty of fault or negligence, they are liable for damages to the extent of the value stated. If free from fault or negligence, their liability, if any, as insurers, will not exceed $100, but within that limitation will be determined by the existing law. Negligence may indeed be inferred in the first instance from the delivery of the subject of the bailment and the failure to return it. Even so, the inference may be repelled through proof by the bailee that the thing, though not returned, has been lost without his fault (Claflin v. Meyer, 75 N.Y. 260). Whether liability will then survive must be determined by the character of the bailment and the liability assumed. The bailee now before us would not be liable in any amount if negligence were absent. Negligence being found, the statute preserves the liability, but limits the recovery.
In one of the opinions at the Appellate Term the point was made that the statute, if read as the defendant reads it, would permit the innkeeper or the proprietor of a restaurant to limit his liability to $75, in default of disclosure of the value, though he had stolen or willfully misused the thing confided to his custody. We have no thought by our decision to sanction such injustice. The statute is aimed at loss or misadventure. It has no application to theft by the defendant or his agents (D'Utassy v. Barrett, 219 N.Y. 420, 424). Very likely, the statute would be fairer if it charged a bailee with a duty to make inquiry as to value so as to put the owner on his guard. Those considerations are for the Legislature. *Page 111 They do not relieve us of the duty to enforce the law as it is written.
The judgment of the Appellate Division and the determination of the Appellate Term should be reversed, and the judgment of the Municipal Court modified by reducing the amount thereof to the sum of $75 with interest and costs, and as so modified affirmed without costs of appeal in this or any court.
HISCOCK, Ch. J., POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgment accordingly.