Jacobs v. Alrae Hotel Corp.

Botein, J. P. (dissenting).

Defendant hotel corporation permitted a safe containing the valuables of its guests to remain open at 4:00 a.m., the time when the robbery occurred. Access to the safe would seldom be required at that hour in a residential-type hotel which evidently did not cater to transient guests. Also, the section containing 15 safe-deposit boxes — one of which held plaintiff’s valuables — was not in any way attached to the sides of the safe. The detective assigned to the case and an insurance company investigator both testified that there were no marks indicating that the section had been forced or pried out of the safe. It is evident that after hacking away and opening several boxes in the lower section, which consisted of 20 boxes, the holdup men found that the smaller upper section was readily removable, and they proceeded gratefully to walk away with it.

These combined circumstances spell out a strong prima facie case of negligence on the part of defendant which it made no effort whatsoever to rebut. The only witness defendant produced was its officer, who testified to a technical compliance with the posting of notice required under section 200 of the General Business Law. Another officer, whose duties were never revealed, was examined before trial by plaintiff, and expressed surprise on learning that the upper section was removable. The conclusion .is irresistable that if defendant did not know that the section was removable, then in the exercise of reasonable prudence it should have known that fact.

Plaintiff has presented actual proof of negligent acts and omissions to act that combined directly to cause the loss of her jewelry—.proof of facts not based on conjecture that amply justified the trial court’s findings. We should not reject such findings on the bases of speculation as to what might have happened had the safe door been closed and the missing section attached to the safe itself. To illustrate how double-edged such speculation can be, it might be argued on plaintiff’s behalf that since the holdup men had tried to pry open the boxes in the lower section, they would never have reached the upper section *206in which the plaintiff’s box was located had that section been attached securely to the safe.

The judgment should be affirmed.

Valente, McNally and Bergan, JJ., concur with Frank, J. Botein, J. P., dissents and votes to affirm in opinion.

Judgment reversed and the complaint dismissed. Settle order on notice.