The jury was entitled to believe that plaintiff, while a guest in defendant’s hotel, placed in a drawer of a safe provided by defendant in its office $1,940; that he asked the clerk in charge for a receipt and was given the key of the drawer with the remark that the key was his receipt. The money disappeared and plaintiff sued for its recovery.
Defendant’s apparent position on the trial and on this appeal is that the “ plaintiff did not deliver the money to defendant for deposit within the meaning of Sec. 200 of the General Business Law ” (which is a limitation upon the common-law liability of an innkeeper). The' defendant also claims that tlie plaintiff failed to deliver the money to defendant.
Upon this rather puzzling claim the learned judge below accepted the defendant’s contention on a question of law, namely, either that the safe provided did not comply with the statutory requirement,
' or that the method adopted prevented the guest from delivering the valuables to it within the meaning of the statute, and that, therefore, the case was not governed by section 200 at all. While it is true that defendant had the right, of which it availed itself, to set up inconsistent defenses, and did plead the limiting protection of the statute in its answer, I do not understand how it can now claim that the trial judge was in error in accepting its own contention on a question of law or how it could ask the court, which *335had accepted that contention, to submit to the jury a defense based upon an assumption inconsistent with defendant’s own claim as to a matter of law. If, however, it can by any hypothesis be assumed that the question passed on by the trial judge in conformity with defendant’s claim was one of fact, there was no request by defendant’s counsel to submit to the jury an alternative issue of fact with instructions as to the effect of the respective findings. It is true that at the close of plaintiff’s case defendant’s counsel asked the court to limit the liability to $500 in accordance with section 200, to which the court replied: “ Motion denied.” This, however, was after three pages of colloquy during which defendant’s counsel argued his theory that the defendant never had possession of the property; that plaintiff failed to prove any negligence and that there was a difference in responsibility between a hotel and a safe deposit company; concluding with the statement that in the case of the latter the relation was that of bailor and bailee whereas “in a hotel in this situation there is no such agreement unless provided in writing, and no consideration for it.” It is not surprising to my mind that the learned judge was unable to understand how the statutory limitation to $500 applied to the case as presented by defendant’s counsel. When these motions were renewed at the close of defendant’s case the learned judge invited further argument and asked: “ Defendant admits that the hotel never had possession of this property within the statute, is that right? ” to which defendant’s counsel replied: “ That is right.” Indeed, throughout the entire trial defendant persistently obtruded its claim that there had been no delivery to it of the plaintiff’s property and all of its requests to charge were blended with that contention. There were, as I have said, occasional references to the limitation of liability, but they were either made in informal colloquy or so mingled with the main contention that the refusal to charge as to the limitation cannot be regarded as error, and certainly not as reversible error.
In this situation it seems to me that the defendant unfortunately put itself into a position where it would have to be held to its common-law innkeeper’s liability in the absence of any effect from the statute limiting that liability. The trial judge, however, charged the jury (more favorably to the defendant, perhaps, than was its due) that the situation was analogous to that of a safe deposit company and its customer, namely, that of bailor and bailee (see Roberts v. Stuyvesant Safe Deposit Company, 123 N. Y. 57), and that it might find for plaintiff if negligence on the part of defendant was proved, a prima face case to that effect being i i:ide out under Claflin v. Meyer (75 N. Y. 260).
*336In the summing up. of defendant’s counsel and in the court’s charge particular stress was laid upon the two real issues of fact thus evolved, namely (1) whether plaintiff actually put into the box the sum claimed; and (2) whether defendant had disproved negligence by showing how the loss had occurred and that it was without its fault. The jury’s finding was manifestly against defendant on both issues. The first was a pure question of fact, and as to the second, there are not only elements of fact affirmatively shown which warranted a finding of negligence — such for instance as the very age of the safe — but defendant’s proof failed to reach the standard set by the cases for defendant’s exoneration. (Thorn v. Straus, 78 Misc. 139, and cases there cited.)
Had defendant taken the position that section 200 did apply but that as no special agreement in writing had been entered into, defendant’s liability was limited to $500, plaintiff’s counsel would have been apprised of that contention and could have asked for a direction or instructions in respect of a possible waiver of that provision by the defendant. In the first place, the notice to guests posted by defendant read, in a free adaptation of the language of section 200: “A safe is provided in the office of this hotel for the safekeeping of all money, jewels, ornaments or other valuable articles of small compass belonging to its guests,” to which was gratuitously added, “ Unless so deposited the management will not be liable for the loss thereof.” From this I think there is a perfectly natural and fair inference that if so deposited the management would be hable. Second, the notice at the head of each page of the hotel register, on which defendant’s counsel has laid great stress, read: “ Guests are hereby notified that the proprietor will not be responsible for valuables, money, jewelry, etc., unless the same are deposited with the cashier, subject to rules of the house and conditions, bn receipt given by him.” From this I think it is an equally fair and reasonable inference that the proprietor interpreted the language of the statute that he should not be liable for any loss “ in any sum exceeding the sum of five hundred dollars, unless by special agreement in writing with such proprietor,” as meaning that the special agreement there referred to was to be in the form of a receipt given by the proprietor or his cashier. When to these two elements is added the fact that when the plaintiff, supposedly advised of the situation by these notices, asked for a receipt, which presumably would indicate the terms of the deposit, he was told that the key was his receipt. Upon this state of facts I am of opinion that the limitation of liability contained in the statute was waived as a matter of law.
I have not undertaken to decide the issues either of fact or of *337law which might have been raised in the course of the trial, but am basing my opinion upon the actual state of the record and the actual course of the trial as it was conducted.
Defendant complains also of the following incident at the trial: The case was submitted to the jury on a Friday afternoon and a sealed verdict ordered to be opened on the following Monday morning. The jury reported on Monday morning that it was unable to agree. The court thereupon resubmitted the case to the jury in spite of defendant’s counsel’s objection to resubmission. I think that the action of the court below was fully justified. . (Warner v. N. Y. Central R. R. Co., 52 N. Y. 437; Tenenbaum v. Cohen, 100 Misc. 360; Seidenbach v. Riley, 6 N. Y. St. Repr. 104; Gelb v. Third Ave. R. Co., 123 Misc. 136.)
I find no error either of law or of fact in the record and think, therefore, that the judgment should be affirmed, with costs.