For- one year previous to May 4, 1939, the plaintiff had stored his automobile in the garage operated by the appellants. On May 4th he left the automobile at the garage in good condition, but when calling for it on May 7th found that it was missing from the garage.
It was then discovered that the defendant Birgis, employed by the appellants for about one year to wash cars and watch the premises, had taken the car without permission and had met with an accident in which it was damaged. The evidence -is uncontradicted that Birgis was not employed to drive cars stored at the garage.
The Municipal Court granted judgment in favor of the plaintiff, holding that “ The rule under which common carriers are liable for the torts of their employees should be extended to garage owners, in cases where the loss of or damage to automobile is involved.” The Appellate Term, although reducing the amount of the recovery, held that the appellants were not liable on the theory applied by the Municipal Court, but that, even though Birgis had been recommended to them and had served for about one year without misconduct, they were liable on the theory of negligence for failure to make a more extensive investigation.
We are not entirely satisfied that the evidence sustains the charge of negligence, but we think the appellants, though not subject to the liability of a common carrier, are liable under the circumstances of the present case. The decisions relied on by the Appellate Term as relieving the appellants from liability for damage caused by theft (Hogan v. O’Brien, 212 App. Div. 193; Claflin v. Meyer, 75 N. Y. 260) were cases where the property was stolen while in the possession of the bailee by persons not under any contractual relationship with him. It is likewise true that neither bailor nor bailee would be liable where the servant has caused injury to others or to the property of others while operating the automobile without authority. In the present case, however, we are concerned with a different problem which seems not to have been decided by any appellate court of *318this State. That question is whether the bailor may hold the bailee liable for the unauthorized use by the servant of the bailee of the property which is the subject of the bailment.
We think that sound principles of law and considerations of expediency combine to require that the bailee be held liable. When the car was delivered to the garage the appellants, by legal implication, agreed not to use it except in accordance with the instructions of the bailor. They would clearly be liable if they had used the automobile on the highway on their own business or for their own pleasure. If they chose to delegate the performance of their contract of bailment to a servant, they assumed responsibility for his acts. The situation and the applicable principles are the same as if the appellants had themselves taken the plaintiff’s automobile from the garage. Their liability is not for negligence but for breach of the contract of bailment through the agency of their employee.
Reasons of expediency confirm these views. The bailee is in a position to select, and in a better position to control, his employees than is the bailor. The bailee may conduct whatever investigation he desires concerning the antecedents and the character of those whom he employs; It is not unreasonable, therefore, that he, rather than the bailor, should suffer the loss caused by the dereliction of his employee. Although there exist decisions to the contrary (Firestone Tire & Rubber Co. v. Pacific Transfer Co., 120 Wash. 665; Firemen’s Fund Ins. Co. v. Schreiber, 150 Wis. 42), the great weight of authority in other States seems to favor this conclusion. (Corbett v. Smeraldo, 91 N. J. L. 29; Manhattan Fire & Marine Ins. Co. v. Grand Central Garage, 54 Nev. 147; Walters v. U. S. Garage, Inc., 131 Me. 222; Evans v. Williams, 232 Ill. App. 439; Vannatta v. Tolliver, 82 Pa. Super. Ct. 546; Medes v. Hornbach, 56 App. Cas. [D. C.] 13; 6 F. [2d] 711; Employers’ Fire Ins. Co. v. Consolidated Garage & Sales Co., 85 Ind. App. 674.)
The determination of the Appellate Term should be affirmed, with costs and disbursements.