(concurring). The essential facts are not seriously in dispute and they are fairly stated in the dissent. Notwithstanding that the court below may have misstated the law regarding respondeat superior, it seems to us on a review of this record that the fundamental issues dispositive of this lawsuit were whether or not there was a bailment of the $34,000 of jewelry allegedly contained in the suitcase that was lost at Grand Central Terminal, and whether or not there was proof of gross negligence by the Conrail employees. Accepting, as does the dissent, that the suitcase was in fact the subject of a bailment agreement between the plaintiff’s niece and the defendant’s employee, no liability would attach for loss of the extraordinary amount of jewelry contained therein, absent notice thereof to the defendant’s employee. (See Magnin v Dinsmore, 62 NY 35; Nathan v Woolverton, 69 Misc 425, affd on opn below 147 App Div 908.) Moreover, such bailment as may have existed was clearly a gratuitous bailment, in respect to which no liability for failure to return the subject of the bailment would attach in the absence of proof of gross negligence. The court below charged the jury appropriately as to the elements of a contract of bailment including the requirement that there must be a delivery of the subject of the bailment and an acceptance of that property by the bailee and that in a gratuitous bailment there must be gross negligence. The court stressed that acceptance is essential to a contract of bailment and went on to charge the jury that “[i]f the nature of thé property is in a closed container, like this suitcase, and it is not disclosed, then you may find that the property was not knowingly accepted by Mr. Pereira * * * In other words, the bailee cannot be compelled to assume liability greater than is intended under all the circumstances.” Significantly, the evidence demonstrates that the plaintiff’s niece herself did not know that this jewelry was contained inside the suitcase she left with Mr. Pereira. The court charged the jury that there could be a contract of bailment as to the suitcase but not as to the jewelry and instructed them that they should determine whether under the circumstances Mr. Pereira should or should not have expected the suitcase to contain jewelry of the value alleged by the plaintiff. The jury was instructed that if they found that there was a bailment Pereira was responsible for such contents which the jury reasonably would expect to find in a suitcase under the circumstances of this particular case and that although the law presumed his negligence because no explanation for the missing bag was given, there had to be proof of gross negligence in order for plaintiff to recover. After deliberating for approximately 20 minutes, the jury requested that it be recharged on the law regarding a contract of bailment. In response to this request, the court *505repeated the charge it had previously given them and the jury returned to its deliberations. A verdict for the defendant was returned within the half hour. It seems therefore that the jury’s determination in favor of the defendant is fully supported by the evidence and that such error as there may have been in the charge was harmless.