The complaint, among other things, alleged that the Ford Motor Car Company, on the 14th day of October, 1921, delivered to the defendant a Ford touring automobile for storage; that the defendant for value agreed to. store the automobile until the following day; that it promised to deliver the automobile to the Ford Motor Car Company upon the following day; that on the 15th day of October, 1920, the Ford Motor -Car Company demanded.the automobile of the defendant; that the defendant refused to deliver the same; that the refusal of the defendant was due to its negligence in placing the automobile in a public highway; that the Ford Motor Car Company thereafter assigned all its right, title and interest in and to any clairh. against the defendant to this plaintiff; that the Ford Motor Car Company was injured in a certain sum by the failure of the defendant to deliyer the car. The answer denied all the material allegations of the complaint except that it admitted the incorporation of the plaintiff, the incorporation of the defendant, the leaving of the automobile with the defendant as an accommodation to the Ford Motor Car Company, and the placing of the car on .the morning of .the fifteenth of October in an alleyway -near its garage.
The following facts were proven: One Herbert G. Brown was an agent of the Ford Motor Car Company and roadman for its branch, office in New York. It was his duty to check up dealers in Ford automobiles upon various lines of their business, to examine their buildings, to investigate their sales, to determine the character of,.service which they were giving. In accomplishing this duty it was necessary for Brown to travel throughout the State of New York. On October . 14, 1920, in pursuit of his duty, he drove a Fprd automobile from Delhi, N. Y., to Albany, N. Y. He arrived in front of a building of the defendant in Albany, N. Y., at about seven o’clock on the evening of that day. A salesman was in the act of locking up the building. Brown asked if he could get his • *220car in, and the salesman told him that he would see if he had space. After looking about the building the salesman told Brown to drive to the street in the rear. Brown drove as directed, and was able, though just barely, to get his car in the building. On the morning of October fifteenth, at about eight-thirty o’clock, Brown visited the place of business of the defendant and asked for his car. The car was not to be found either in the building or upon the street in its vicinity. From the allegations of the complaint and the admissions of the answer it must be taken as a fact that the car that morning had been removed from the building to a street or alleyway in its vicinity and had been taken or stolen from the place where it had thus been placed by some person or persons other than the defendant or its agents.
The building in question faced upon Broadway and ran through to Liberty street in the rear. The front of the building was used for the display of Ford cars and other wares in which the defendant dealt. The use to which the rear of the building was put was not explained. The building was called a garage by the principal witness for the plaintiff, but it nowhere appears in the proof that it was a public garage, that it was used to store cars for hire or that cars other than automobiles which the defendant had for sale or was in the course of repairing for customers were ever stored therein. There was no proof that Brown contracted with the defendant or its agents for the storage of his car for hire. As the defendant was a sales agent of Ford cars and its building and business were, therefore, subject to inspection and investigation by Brown, it is highly probable that no charge was intended by the defendant to be made, or intended by Brown to be paid for storage. No other conclusion can be drawn from the proof than that the bailment of the car was a gratuitous bailment.
A gratuitous bailee is liable for the loss of the thing bailed provided only the loss is due to his gross negligence. (Ouderkirk v. C. N. Bank, 119 N. Y. 263; Gottlieb v. Wallace Wall Paper Company, 156 App. Div. 150.) No proof of such negligence was given in this case. The place in the alleyway or public street to which the car was removed was not stated. It did not appear whether the car when thus placed remained within view of agents of the defendant. There was no proof that a watchman was not stationed at the car by the defendant to guard it; that the engine of the car was not locked; that the car was not otherwise reasonably secured against removal. The meagre proof given did not justify the finding that the defendant had been guilty of gross negligence in relation to the car, and was, therefore, as a gratuitous bailee, liable for its loss.
*221The judgment and order should be reversed and a new trial granted.
Kiley and Van Kirk, JJ., concur; Hinman and Hasbouck, JJ., concur in an opinion by Hinman, J.