(dissenting). The trial court set aside the plaintiff’s verdict as a compromise upon the ground that the award could not be held to include the jewelry on any assessment of value warranted by the evidence, or else it constituted a finding that the jewelry Avas not in the suitcase.
A jury verdict should not be set aside as a compromise if it can be supported upon any hypothesis presented by the evidence in the case (Candia do Co. v. Rubin, 209 App. Div. 357; Clark v. Foreign Products Co., 194 App. Div. 284).
I think that the trial court overlooked a possible finding by the jury justified by the evidence, viz., that even if the jewelry was in the suitcase and irrespective of its value, defendant was not liable for its loss because of plaintiff’s failure to place it in the hotel safe. If it so found, the jury might then have awarded plaintiff $2,000 as the value of the clothing and other personal effects alone. Such an award Avould not constitute a compromise, since the evidence as to the alleged value of $3,000 for such clothing, etc., Avas largely based on cost and the effects had been subjected to use.
At this point it seems pertinent to note a conflict in the testimony in the case. Plaintiff testified that prior to leaAdng for the adjoining hotel she státed to defendant’s bellman that she would take her jewelry out of the large suitcase and deposit it in the safe. She said that the bellman assured her that there would be no need to do this, as he could place the entire suitcase and contents in the hotel vault. The bellman, however, denied any such conversation Avith plaintiff and denied any mention of the jewelry or tender of it for deposit in the safe.
*116The defendant pleaded as defenses the protection afforded an innkeeper by sections 200 and 201 of the General Business Law. It claimed that under section 200 it was not liable for the loss of the jewelry because it had provided a safe and posted the notice required by the statute, and that plaintiff did not deliver the jewelry to defendant for deposit in the safe or declare its presence in the suitcase. The hotel’s compliance with the statutory requirements as to posting of notice was conceded.
On this appeal the parties have not dealt with the partial defense as to the $500 limitation of liability found in section 200, though plaintiff gave no testimony of any declaration as to value nor of any special written agreement. Defendant chooses to assume that the jury made no award for the jewelry. In my opinion it would not alter the case if the $2,000 verdict is deemed to include an award of $500 for the jewelry. It would merely mean that $1,500 was awarded for the used clothing.
We are apparently agreed that the relationship of innkeeper and guest existed between the parties. In any event, the question appears to have been left to the jury by the trial court without any objection on plaintiff’s part, and we must assume that the jury found that the innkeeper-guest relationship controlled because every reasonable hypothesis in support of the integrity of the verdict must be indulged.
As this was the relationship of the parties, the guest was required under section 200 of the General Business Law to place her jewelry in the safe provided for that purpose. In the court’s charge to the jury there was no stressing of the issue as to plaintiff’s alleged offer of the jewelry for deposit. But there was some discussion of the provisions of section 200, and the jury heard the disputed testimony in regard to the alleged offer of deposit. It was advised that it was its function to decide all the issues of fact in the case. I think that in order to uphold the verdict we should assume that the jury did consider that issue and resolved it so as to exonerate defendant from liability for the jewelry.
The question of liability of defendant for the jewelry based, on its negligence in giving the suitcase to an impostor would seem to be immaterial on the face of the statute, at least in the absence of a delivery for deposit in the safe. Complete immunity appears to be afforded the hotelkeeper for jewelry not deposited. As the jury’s verdict indicates a finding that no deposit was made, it becomes unnecessary for us to decide whether negligence in caring for jewelry that had been left for deposit in the *117safe would afford a basis for liability and, if so, whether that liability would be limited to $500 under the statute in the absence of a special written contract. It may be well, however, to point out that the grant of immunity set forth in section 200 appears to be all inclusive by its terms. No exception to or restraint upon said immunity is expressed, even in instances where the hotelkeeper is negligent, although section 201 does mention such an exception. Insofar as section 200 constitutes a limitation affecting merely the measure of recovery, it clearly would be applicable to loss from any cause, including negligence (Honig v. Riley, 244 N. Y. 105, 109). But section 200 goes beyond limiting the measure of recovery to $500 for deposited jewelry. It purports to grant complete immunity as to non-deposited jewelry. Thus some room for doubt may exist as to whether negligence would affect the complete immunity and impose liability up to $500, though it would seem clear that it could not affect the limitation of liability at that sum in the absence of special agreement.
The question of liability for negligence is rendered academic for reasons heretofore indicated that a recovery up to $500 for the jewelry would be amply covered by the present verdict.
This leaves us with the inquiry as to the defendant’s liability for the clothing and other personal effects. Defendant says that such liability is limited to $100 under section 201 of the General Business Law on the conceded fact that the property was lost from a checkroom and not the guest’s room, and no value was stated. It asks us to reduce the verdict to that sum, a motion for that relief having been made after return of the verdict and denied by the trial court.
I agree with the defendant’s construction of section 201, but we are dealing with a jury’s verdict and the right to alter its amount by direct action of the court after rendition, and not a motion for direction of a verdict before its rendition. Neither this court nor the trial court would seem to have the power to alter a verdict by changing its amount. The verdict might be set aside, unless the plaintiff stipulated to reduce it to the proper amount. But defendant did not and does not ask that relief, which would entail a new trial if the stipulation was not forthcoming. As defendant is appealing from an order granting a new trial, we may assume that it is not seeking any relief that would bring about such result.
Under the circumstances, the order appealed from should be reversed and the verdict reinstated.
*118Q-lennon and Shientag, JJ., concur with Peck, P. J.; Callahan, J., dissents and votes to reverse and reinstate the verdict, in opinion; Cohn, J., dissents in the following memorandum: I dissent and concur in the result reached by Callahan, J., upon the ground that the jury could properly find, under the court’s charge, that the relationship of guest and innkeeper did not exist insofar as this transaction was concerned and that the jury had the right to render a verdict in favor of the plaintiff in the sum of $2,000.
Order affirmed, with costs to respondent.