(dissenting). Plaintiff’s testimony was only this: that when she came to look for her money theretofore placed in her safe-deposit box in defendant’s vaults, the money was missing therefrom. Her complaint had alleged that “ through the negligence of the defendant the same had been *531theretofore taken and stolen from said safe deposit box ”. As in every other negligence case it was, of course, the burden of plaintiff to establish that the loss came about because of defendant’s failure to exercise due care. There was no affirmative proof at all as to how, when or by whom the removal from the box was effected. If leaving the money in the box had amounted to a bailment thereof from plaintiff to defendant, plaintiff would have carried her burden of proof by showing the nonreturn by defendant of the bailed property. The case would then have been one where “the failure * * * to produce the subject of bailment when demanded, prima facie established negligence and want of due care ” (Burnell v. New York Central R. R. Co., 45 N. Y. 184, 189; Fairfax v. New York Central & H. R. R. R. Co., 67 N. Y. 11, 14). But if the relationship was not that of bailor-bailee, then the dismissal of the complaint was correct, since, if the presumption available to bailee is not here available, there was (unlike Rehmer v. Cappel, 246 N. Y. 613) no proof that any negligence of defendant caused or contributed to plaintiff’s loss of her currency.
Was it a bailment? Did defendant, leasing to plaintiff a box in defendant’s vaults, with the usual double-lock system whereby each party had to produce a separate key for a separate lock in order to open the box, make defendant a bailee of whatever plaintiff put into the box, even when, as here, defendant never saw or handled the property, or knew of its existence? A number of decisions, in other States, say that this is a true bailment, and that there is applicable thereto the traditional law of bailment, which sets up a presumption of negligence from mere proof of delivery, and, on that mere showing, puts a defendant bailee to its excuses, if it has any. But this court, in its only modern statement on the subject, has taken a different view, and, we think, correctly, logically and justly. In Carples v. Cumberland Coal & Iron Co. (240 N. Y. 187, 192), it is said: “ While the status of the Safe Deposit Company is, therefore, in some aspects that of a bailee, the customer’s control and possession of his box is not much different than would be the control and possession by a tenant of property in an office which he had rented from the owner of the building ” (cited in Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266, 269). That language was designed to point out that, as to property left *532in a safe-deposit box, the box holder himself retains a measure of control and possession. That being so, there is no bailment, since a necessary feature of every bailment is a transfer of possession to the bailee (Lawson on Bailments, p. 10; Schouler’s Bailments and Carriers [3d ed.], p. 2; Phelps v. People, 72 N. Y. 334, 357; Collins v. Bennett, 46 N. Y. 490, 494; 6 Am. Jur., Bailments, p. 178, 189; 8 C. J. S., Bailments, p. 222; Sturm v. Boker, 150 U. S. 312, 329). “ One of the essential elements of a bailment is that the property be taken into the possession of the bailee ” (Osborn v. Cline, 263 N. Y. 434, 437). “ It is the element of lawful possession, however created, and duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense ” (Foulke v. New York Cons. R. R. Co., 228 N. Y. 269, 275; Armstrong v. Sisti, 242 N. Y. 440, 444). “ A bailment implies the delivery of a chattel; and to subject one to liability as a bailee it is a constituent that he had voluntarily assumed or retained the custody of the chattel alleged to have been bailed ” (Pattison v. Hammerstein, 17 Misc. 375, 376). “ In other words, the common law, with its characteristic horse-sense, makes a virtue out of necessity growing out of the fact that, where the bailee has the exclusive and undivided possession of the goods, he must also have the exclusive means of showing what became of them. Where the reason of the law ceases, the law ceases. For reasons which must be perfectly manifest to any thinking person, the rule referred to does not obtain or apply where the bailee does not have the exclusive and undivided possession of the property ” (Lemnos Broad Silk Works v. Spiegelberg, 127 Misc. 855, 858).
The reason for the rule which creates a presumption of negligence from a mere nondelivery of a bailed chattel, is stated plainly in our cases. “ This rule proceeds either from the assumed necessity of the case, it being presumed that the bailee has exclusive knowledge of the facts and that he is able to give the reason for his non-delivery, if any exist, other than his own act or fault, or from a presumption that he actually retains the goods and by his refusal converts them ” (Claflin v. Meyer, 75 N. Y. 260, 262, citing Schmidt v. Blood, 9 Wend. 268). Neither of those presumptions can have any reasonable relation to the loss of an article from a safe-deposit box, when the box can be *533opened only by joint use of two different kinds of keys held by lessor and lessee, respectively, and where the lessor of the box has not in any manner taken custody of the property in the box, but has merely made the use of that box available to the lessee customer. This was not a bailment since defendant never had any custody of the money — certainly not the exclusive custody and possession thereof. The peculiar rules as to proof in bailment cases have, therefore, no application, and, since any recovery by this plaintiff was solely on the bailment rule, there was a failure of proof, and the complaint was rightfully dismissed.
There is another reason why defendant, after all the proof was in, was entitled to judgment. “ If, either in the course of his [plaintiff’s] proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence ” of the alleged bailee (Claflin v. Meyer, supra, p. 264; Castorina v. Rosen, 290 N. Y. 445, 447). Even a bailee for hire,“ is only bound to take the same care of the goods as of his own, and if they be stolen or embezzled by his servant, without gross negligence on his part, he is not liable ” (Schmidt v. Blood, supra, p. 271). If, as the jury could have found on her testimony, this plaintiff did leave the currency in the box and did not herself take it out, then its removal therefrom must have been a theft. Indeed, the complaint alleges that it was “stolen ”. There is nothing in this testimony from which it could be found that any negligence of defendant had anything to do with that theft, so defendant was not liable, under the rule of the cases just above cited in this paragraph.
The judgment should be affirmed, with costs.
Lewis, Conway and Froessel, JJ., concur with Loughran, Ch. J.; Desmond, J., dissents in opinion in which Dye and Fuld, JJ., concur.
Judgments reversed, etc.