[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 264 The articles stolen from the plaintiff's trunk consisted of jewelry and ornaments, which she had with her for use at places of summer resort, which she seems to have been engaged in visiting. She was a guest at defendants' *Page 265 hotel, and it is not disputed that by the common law they were liable for the loss of them. But they claim exemption from liability by virtue of chapter 421 of the Laws of 1855, an act to regulate the liability of hotel keepers, they having provided a safe and posted the notice required by the act. The sole question for us to determine is, whether under the circumstances of this case this act gives the defendants the protection claimed.
Courts in construing a statute must seek for the intention of the law-makers, and they must seek for it in the language used. They must consider all parts of the statute, and so far as possible give force and effect to all the language used, and so far as the language will permit, they should give such a construction as will make the statute practicable, just and reasonably convenient. But if, after the language has been attentively considered with the aid of such circumstances as the canons of construction, sanctioned by the law, allow to be consulted, the statute is found to be somewhat impracticable, inconvenient, harsh or unjust, the courts have no alternative but to enforce and uphold it as they find it, and leave it to the legislature to remedy the mischief by amendment or repeal.
This statute provides that if any hotel keeper shall provide a safe for keeping any money, jewels or ornaments belonging to his guests, and shall notify them by posting a notice in the rooms occupied by them, and if such guests shall neglect to deposit their money, jewels or ornaments, in such safe, the hotel keeper shall not be liable for any loss of such money, jewels or ornaments, sustained by such guest by theft or otherwise.
The referee in this case held the defendants liable, notwithstanding this act, on the authority of the case of Gile v. Libby (36 Barb., 70), which decided that the statutory exemption did not apply to all money, jewels and ornaments of the guest, but only to such as the hotel keeper himself, if a prudent person, would, if traveling, have put in a safe, if convenient, when retiring at night. It was said in that case to be unreasonable to suppose that the legislature intended *Page 266 to require the guest when he retired at night to deposit in the safe such reasonable amount of money as he had provided for his expenses, and the jewelry and ornaments which he had with him for ordinary use, and that the statutory exemption did not apply to twenty-five dollars in money, a watch and chain, gold pen and pencil case, which were stolen from the room of the guest in the night. But that case was disapproved in the case of Hyatt v.Taylor (51 Barb., 632, and 42 N.Y., 258). In this latter case the action was to recover for about $200 stolen from the plaintiff's room in the night-time while he was a guest at defendant's hotel in New Jersey, and the defendant relied for his protection upon a New Jersey statute similar to our own. At the circuit, the judge following the case of Gile v. Libby, instructed the jury that the defendants were not protected by the statute as to money sufficient for plaintiff's necessary traveling expenses. The jury gave plaintiff a verdict, and the defendant appealed to the General Term and the instruction was held erroneous and the judgment was reversed, and then the plaintiff appealed to the Court of Appeals and the decision of the General Term was affirmed. The law is thus settled in this State that if a guest, on retiring to bed at night, removes a watch or jewelry from his person, or leaves money in his pocket, and neglects to deposit the same in the safe provided for that purpose, he cannot hold the landlord liable for the loss of the same, provided the notice required by the statute has been posted in his room. However inconvenient or troublesome it may be to make the deposit, it must be made or else the landlord has the protection of the statute.
The reasoning of the learned judges who wrote opinions in that case, both in the Supreme Court and Court of Appeals, is ample to establish the exemption of the defendants from liability in this case. But it is sought by the plaintiff to bring this case within the principle decided in Bendetson v. French (46 N.Y., 266). In that case plaintiff was a guest at defendant's hotel and was about to leave for his home. He *Page 267 packed his trunk, placing in it a package of watches and jewelry, locked the door of his room, delivered the key to the hotel clerk, ordered his trunk to be brought down immediately and his bill to be made out, saying that he would return in a few minutes and pay it. He went to lunch and in a few minutes returned to the office, paid his bill, inquired for his trunk and learned that it had not been brought from his room. He then went with the hotel porter to his room and found that it had been entered, his trunk broken open, and his watches and jewelry stolen. It was held that the defendants were liable. Judge PECKHAM, writing the opinion, says: "The statute is very broad in its language, that if such guest shall neglect to deposit, c., the proprietor shall not be liable for any loss of such money, etc., sustained by such theft or otherwise. This was evidently aimed at losses that should occur by such neglect. It could have no reference to losses at the inn occurring before the guest had the opportunity to make such deposit, or after he had packed his trunk, locked his room, and given notice for immediate departure, etc., delivered up the key of his room to the clerk to have his trunk brought down." That case is clearly distinguishable from this. The guest had surrendered up his room and placed it in the control of the landlord. He asked to have his trunk brought down immediately, and but for the neglect of the hotel clerk to attend to this order at once, the theft could not have been perpetrated. The landlord was just as clearly liable as he would have been if the trunk had been brought down and broken into after it had been taken from the room and before it left the hotel. There was no neglect to make the deposit, because the watches, etc., could not be in the safe when he packed his trunk for his departure. The learned judge who wrote the opinion says justly, that there could be no "neglect to deposit" before there had been an opportunity to deposit. There must be a brief period after the arrival of a guest at a hotel before he can make the deposit, and during this brief period the statute affords the hotel keeper no protection. But in every case where the *Page 268 guest has an opportunity to make the deposit and does not make it, he neglects to make it within the meaning of the statute. To neglect means to omit, as to neglect business, or payment, or duty, or work, and is generally used in this sense. It does not generally imply carelessness or imprudence, but simply an omission to do or perform some work, duty or act. It is manifestly in this sense that it is used in this statute. To hold that the guest must be guilty of some actual negligence in not making the deposit, would be substantially to nullify the statute. At common law, the negligence of the guest in the care of his goods generally exempts the landlord from liability for their loss. What degree of negligence on the part of the guest in not making the deposit would give the landlord the statutory protection? How long, and for what purposes, may a guest be absent from his room, without making the deposit, and not be chargeable with negligence? Would he be negligent if he retained his watch and jewelry in his room over night? Could he be charged with negligence if he had not seen and did not know of the notice? The question of negligence would have to be submitted to the jury, and the result would be that nearly every case would be disposed of upon the common-law liability. The true rule undoubtedly is as above stated, that it is the duty of the guest to make the deposit whenever he has time and opportunity to do so. This rule may be inconvenient to guests, but the statute was not intended for their benefit. It was manifestly enacted for the protection of the hotel keepers.
In this case the plaintiff arrived with her husband at the hotel at or near three o'clock, and the dinner hour, as advertised, was from two to four o'clock, but practically from two to five. They were in their room nearly an hour before going to dinner. There was abundant opportunity to make the deposit, and nothing to prevent it. It is true that no person, under such circumstances, would be likely to make the deposit. Neither would any guest be likely to do so with the jewelry which he takes from his person upon retiring *Page 269 at night, and yet it has been held that he keeps them in his room at his own risk.
I have, therefore, reached the conclusion that the judgment should be reversed, and new trial granted, costs to abide event.
All concur.
Judgment reversed.