The act of 1855 provides that whenever the proprietor of a hotel shall provide a safe for the safe keeping of money, jewels and ornaments, and shall post a notice thereof, conspicuously in the rooms of the hotel, “if such guest shall neglect to deposit such money, jewels or ornaments in such safe, the proprietor of such hotel shall not be liable for any loss of such money, jewels or ornaments sustained by such guest, by theft or otherwise.”
The object of this act was to relieve the hotel keeper from the former liability founded upon his presumed possession and control over the property of his guest, by reason of the same being within his house, and under the care and supervision of himself, his servants and agents. The statute must be construed so as to carry out this object. The only construction that can be put on it to effect this, is, that the hotel keeper is liable for losses occurring only when he has the actual possession and custody of the articles, by their being placed in a safe provided.
Whilst they are out of the safe they are to be regarded as within the personal care and custody of the guest, and not of the hotel keeper, and the hotel keeper, during that time, is relieved from responsibility.
*38This view of the statute disposes of all the questions arising on this appeal, except the one growing out of the interview between the plaintiff and defendant's clerk.
/This interview can be available to the plaintiff, only on the ground that by it he was deprived of the security of the safe, and that, therefore, the case is to be considered as if no safe had been provided.
To have this effect, knowledge of the contents of the package should be brought home to the clerk. The plaintiff urges that he had reasonable notice of the contents, by its being offered for deposit. Whether that was reasonable notice or not, depends on all the surrounding circumstances. Under the facts of this case, I think it was not. Here the plaintiff offers a large package, done up in a rough style, not indicating in any manner that‘it contained jewelry, but, on the contrary, leading to the supposition that it was an ordinary package, which the plaintiff, to prevent the necessity of going up stairs, desired 'to have temporarily placed in the safe. It was calculated to mislead, and that it did mislead, and that the plaintiff knew it misled the clerk, I think is apparent from the whole evidence. As the clerk had previously deposited an opera glass in the safe, at the plaintiff's request, his statement,, that this package would be just as secure in the room as in the safe, was enough to show the plaintiff that the clerk was unaware of the valuable contents of said package, and supposed it not to be of a character which should require the protection of a safe. The plaintiff knew the value of the package, and also knew that the clerk did not, and the evidence warrants the conclusion that the plaintiff knew that if he had disclosed the value to the clerk, such clerk would have deposited it in the safe, and that,for some purpose of his own he concealed the value purposely-and knowingly, leaving /the clerk under a false impression.'
The judgment should be reversed, and a new trial ordered at the circuit, costs to abide the event.
*39[New York General Term, May 2, 1865,Ingraham, P. J. I do not deem it necessary in this case to j decide whether the defendant might not be liable for jewelry, j &c. after the same has been packed, prior to Ms departure s from the hotel. I concur with Justice Barnard in reversing the judgment, upon the ground„that the plaintiff did not disclose the contents of the package, and was not excused by the remark of the clerk from putting the same in the chest of the landlord.
Clerke, J., also concurred,
Judgment reversed.
tnyráíllxm, Geo. G. Barnard and Gierke, Justices.}