There are two questions in this case, upon which I am inclined to decide in favor of the defendant.
First. That an innkeeper, as such, is not liable for the goods of third persons in the possession of a guest or traveler, while stopping at the inn.
Clearly, the innkeeper could have no lien on the goods of a third person in possession of a traveler, unless such traveler could be treated as the servant of the real owner. He might have a lien on such goods if he had no notice of the ownership. (3 Stark. 172.) Perhaps, in this case, one of the plaintiffs being part owner and partner of the other, may be called the servant of the other plaintiff, as to the remaining half, and if so, the liability might exist. But,
Secondly. Goods delivered by a stranger to a clerk of an innkeeper, to be delivered by him to the guest, are not within that class for which the innkeeper is liable on the custom. He may be liable, as a bailee, for gross negligence. To make him liable as innkeeper, it must appear that he keeps an inn, that plaintiff is his guest, that he brought the goods to the inn, *65and that they have been stolen or lost. In this case the goods never came to the plaintiff’s possession; they were no part of his property as a traveler, and the whole structure upon which the innkeeper’s liability rests falls to the ground, if it be held that an innkeeper, as such, is liable for packages left at the bar of the inn to be delivered to the guest. (8 Cow. R. 65, 32.)
The rule is founded on the supposed necessity of taking in a traveler to lodge for the night, or to obtain his meals, with his baggage and property that he has with him on his journey, and while so eating or lodging, that he and his property are to be protected from loss or robbery by persons at the inn.
A package left to be delivered to a lodger, constitutes simply a bailment, and the rule of liability is very different from that in the case of an innkeeper’s liability for the goods of a guest.
Judgment affirmed.