1. The amendment of the summons was within the power of the court, was ordered by the court, did no harm to the defendants, and is to be regarded by the appellate court as a technical objection, not to be the ground of reversal.
2. The claim for property, whether arising ex combraetM or ex delicto, is assignable. We have lately held, a claim against a common carrier was assignable, and the same rule applies to innkeepers. This point is well settled in all the courts.
3. The defendants claim to be exempt from liability for money lost by robbery in the hotel, and on two grounds; first, because of the notice given to the guests that they will not be liable for valuables and money, unless deposited in the safe; secondly, because, without such notice, an innkeeper is not liable for money stolen out of a trunk, or for any thing beyond necessary articles for a person who is travelling.
*91That the carrier or innkeeper cannot limit his liability by a general notice, has been repeatedly adjudged. I need only refer to the cases of Hollister v. Nowlen, (19 Wend. 234,) and of Cole v. Goodwin & Story, (19 Wend. 251,) as containing much law on the point, and citing at least sufficient authorities to sustain the decision of the court, that notice, although brought home to the owner, did not relieve the carrier or innkeeper from liability for the safety of their goods; and to Gould and others v. Hill, (2 Hill’s Rep. 623,) that a special acceptance of the goods will not discharge from such liability. Whether he may not, by a special agreement entered into by both parties, restrict such liability, it is not necessary now to inquire.
In some cases of common carriers, the liability has been, both in the English and American courts, so far limited by a notice as to require from the owner a disclosure of the contents of the packages, and in cases of fraud or concealment, with a view to defraud the carrier of his hire, to relieve him from liability to the extent of the intended fraud. But these-cases are based upon the supposed right of the carrier to a reward proportionate to the risk. Thus, when the owner informed the carrier that the package contained £200, when, in fact, it contained £450, the carrier was only held responsible, in case of loss, to £200, as his reward was only for that sum. (See several cases cited in the opinion of Cole v. Goodwin et al., supra.)
Upon the same principle, the case of the Orange County Bank v. Brown, (9 Wend. 85,) was decided, holding, that a large sum of money, placed in a traveller’s trunk, was not within the protection which the law gives to the traveller’s baggage.
The notices in this case were, that the defendants would not be liable for any thing of value, unless placed in the safe; and even admitting that they might, by such notice, require the traveller, while he was staying at the hotel, to keep his money in the safe of the establishment, which I do not mean to be understood as adopting as law, yet it could not be that *92the traveller, while preparing to start on his journey, should be required still to leave money in the safe until he actually leaves the hotel. It was not until he was packing his trunks for his journey that he placed the money in them, and as soon as it was so done, the key of the room was given to the proprietor, with the information that the baggage was ready. I think nothing contained in the notices would answer to limit the innkeeper’s liability after he received the key, under such circumstances.
It is contended that the innkeeper is not liable for money contained in the baggage, and so brought into the hotel without notice of the same being given by the owner. In the case of innkeepers, the liability in this respect is more extended than that of common carriers. They cannot refuse to receive, with the guest, any kind of goods he may bring, but they are hound to receive both, and they are equally liable for the goods while the guest remains. The innkeeper’s compensation is his charge to the guest for his board and lodging, and he receives no additional compensation, whether the goods of the guest are of greater or less value. The ground, therefore, upon which a common carrier is not responsible for concealment of money, &c., in baggage, viz., that he is defrauded of his reward for the carriage, is not to be found in examining the liability of the innkeeper.
Kent says, the responsibility of the innkeeper extends to all the goods, chattels and moneys of his guest which are placed within the inn. Again: “ It is not necessary that the goods should have been in-the special keeping of the innkeeper ; if they be in the inn, that is sufficient to charge him.” (2 Kent’s Com. 593.) In Quinton v. Courtney, (1 Haywood N. C. R. 40,) the innkeeper was held liable for money stolen out of the saddlebags of the guest, who had not given notice of the contents of such bags to the innkeeper. (See, also, 5 Term Rep. 275; 21 Wend. 282; 14 J. R. 175.) It can hardly be necessary to cite authorities to show that the innkeeper is liable for money stolen from the guest, when we look at the necessity of the traveller having money with bim *93in travelling, and the like necessity of taking it with him to the inn when he enters it. He is to be protected as to his property while he remains a guest; and as no extra charge can be made, because he carries money, so no exemption from liability can be claimed, if the fact of having money is not disclosed to the innkeeper.
The innkeeper is, I think, liable, whether the guest has the money in his baggage or in the safe of the innkeeper; and where the guest is required to deposit valuables in a safe, during his stay at the inn, even admitting that the innkeeper might, by a notice, so limit his liability, still, where the baggage is prepared for travelling, and has been placed under the care of the innkeeper’s servants for that purpose, he is liable, notwithstanding such notice. The liability in such case is the same as it would be on arrival, before the guest’s baggage had gone to his room. If stolen then, the innkeeper would be responsible. So after it is prepared for leaving the hotel, the same liability exists, however much in the intermediate time such liability may have been limited by notice.
The judgment should be affirmed.
Daly, J., concurred in affirming the judgment, but filed no opinion.