Plaintiff sues to recover the value of an overcoat which disappeared after he had hung it'upon a hook about two feet from the table at which he had seated himself in defendant’s restaurant. The restaurant is situated at Ho. 43 West Thirty-third street, in the heart of a high class retail shopping district, and the room in which plaintiff was seated is a large open one accommodating from 300 to 400 people. “Along the walls between the tables are hooks on which you hang your coats. I think there were four columns in the center of the room, located around; and *401around those columns are rows of hooks upon which you hang your coats * * * I hung mine on a hook which was immediately behind the table at which I sat — within two feet of it.” There was no place for checking coats or other personal property, but the cashier was accustomed to allow persons to place satchels and similar articles “ behind the counter * * * inside of a gate ” in “ a large place about half as large as that jury-box,” but no notice to this effect was given to patrons, and the plaintiff was not aware of such practice. According to defendant, it is a rule that waiters are not allowed to take into their possession the coats or belongings of guests. The bills of fare, as well as a very few placards on the walls, carried the inscription “ Rot responsible for hats, overcoats, umbrellas, etc.” Plaintiff had not noticed this inscription until after his attention was called to it at the time of the loss of his coat.
It seems to be undisputed that in this restaurant as distinguished from the one involved in Harris v. Childs, 84 N. Y. Supp. 260, plaintiff was impliedly invited to remove his outer clothing.
The difficulty, after conceding the invitation to remove the garments, seems to consist in determining whether they remained thereafter in the custody of the owner or were committed to the care of -the proprietor —- in short, whether there was a bailment. I am not prepared to say that any clear rule of universal application can be found in- the cases. See Buttman v. Dennett, 9 Misc. Rep. 462; Simpson v. Rourke, 13 id. 230; Duckworth v. Codington, 136 N. Y. Supp. 68; Bird v. Everard, 4 Misc. Rep. 104; Montgomery v. Ladjing, 30 id. 92.
In Bunnell v. Stern, 122 N. Y. 539, 543, the proprietors of a large retail store were held liable as “ voluntary custodians for profit to themselves,” where a customer, invited to try on wraps, had laid off her coat. “ It was necessary for her to lay it down somewhere. Ho place was provided for that purpose. There was not even a chair in sight. * * * She put it in the only place that was available, unless she threw it on the floor, and as she did so, in contemplation of law, the defendants stood looking at her.” The last clause *402evidently refers to the fact that the clerk, who waited upon her, as well as a clerk behind the counter, saw her lay it down. In Wamser v. Browning, King & Co., 187 N. Y. 87, the plaintiff, desiring to purchase a vest, was told by a clerk, then otherwise engaged, that the vests were piled up on a table some distance away, and that he could go over and help himself. His own coat and vest, while he was trying on a new one— but not in the presence of, or even near, any clerk of the establishment — were lost; and the conclusion of the court is: “ We, therefore, are of the opinion that the loss occurred through the negligence of the plaintiff.” The absence of the clerk and of his invitation to lay off plaintiff’s clothing was commented on. See also Powers v. O’Neill, 89 Hun, 129.
In Pattison v. Hammerstein, 17 Misc. Rep. 375, it was held that occupants of a box in a theatre, who hung their outer clothing upon hooks affixed to the wall of the box, did not commit them to the custody of the proprietor; and no “ evidence of negligence being apparent from some act of commission, or of omission ” on the part of the proprietor, it Was decided that he had not been shown to be liable. The box, in which the clothing was hung, was screened off from the rest of the house and plaintiff permitted persons, not of his party, to enter the box freely, without any objection on his part.
It is significant that, in the case last cited, the clothing was hung in an enclosure exclusively engaged by the plaintiffs and separated from the balance of the house; whereas, in the case at bar, plaintiff’s coat was hung upon the wall of a large open room filled with the employees of the defendant, to every one of whom it was in full view. Under these circumstances, it seems to me to be the natural, if not the only, conclusion that the coat laid off by plaintiff, at the defendant’s invitation, was as much “ actually delivered ” (as defined by Mr. Justice Seabury, in his opinion) to the temporary custody and exclusive possession of the defendant as if it had been hung in a , coat-room provided by the defendant ; and that, had there been any reason for such action, defendant might have rightly prevented the plaintiff from *403resuming possession of the coat until defendant or its agents had been satisfied of plaintiff’s title thereto by some appropriate means. Surely this is a far more rational inference to be drawn from the circumstances than to argue that the coat, hung on a hook two feet from the plaintiff and behind him, was in his personal care and custody while he was engaged in eating the meal provided by the defendant.
I think, also, that upon the evidence adduced by the defendant himself, regarless of the question of bailment, there was an absence of due and adequate care and supervision over the property of his guests under circumstances in which he became necessarily obliged to exercise the same; but I prefer to rest my decision upon the ground of actual bailment.
The judgment should be affirmed.