(dissenting). I dissent and vote to affirm for the following reasons. The sole question to be resolved is whether an agreement by appellant bailee to return the transparency in the condition that it was leased extended appellant’s liability beyond that ordinarily imposed in a bailment for mutual benefit so as to render appellant liable in judgment. I think it does. In a bailment for mutual benefit, as this concededly was, in the absence of special agreement a bailee is only obligated to exercise ordinary care and diligence in the preservation of the bailor’s property. It is well settled, however, that a bailee may enlarge his legal responsibility for the subject of the bailment (Siegel v. Spear & Co., 234 N. Y. 479; 5 N. Y. Jur. Bailment, §68). It is here alleged that the leasing was conditioned upon the return of the transparency to the plaintiff in the same condition as it was leased. Defendant, by a failure to deny in response to a notice to admit, acknowledges that to be the fact. When such agreement was made plaintiff bailor still had possession of the goods, and parted with them upon the assurance that the article would be returned in the same condition as when leased. This was a specific promise which served to extend appellant’s liability to return the property safely (cf. Zaidens v. Salter, 142 Misc. 439). The reasonable and logical inference is that the promise plus the financial consideration induced the transaction, without which it would not have occurred (cf. Carll v. Goldberg, 59 Misc. 172).
McGivern, McNally and Macken, JJ., concur with Botein, P. J.; Stevens, J., dissents in opinion.
Order entered on October 13,1967, reversed, on the law, without costs and without disbursements, and plaintiff’s motion for summary judgment denied.