Cantancarito v. Siegel-Cooper Co.

23 Misc. 664, 52 N.Y.S. 29

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1898
• Status: Published

Opinion

Gildersleeve, J.

The court below awarded the plaintiff judgment for the value of an overcoat, lost while plaintiff was in the defendant’s employ. Adopting a view of the testimony most favorable to the plaintiff, the facts are that the overcoat disappeared from an open wardrobe, on a floor- of defendant’s place of business, set apart for the reception of the outer garments of defendant’s employees. This wardrobe was situated in a locked inclosure, from which the general public was excluded. Access could only be had, at stated times, through a single door, near which stood the desk of an employee, whose duty it was to remain at that place during the entire day, and see that none but employees entered the locked inclosure. After the plaintiff had been about a week in defendant’s employ, he went, at the conclusion of a day’s labor, to the wardrobe to get his overcoat, prior to leaving for the .day, and found that it was gone. He made a demand upon defendant for the return of the coat, and, upon its failure to comply, he brought this action to recover the value of the overcoat.

The principle of law, upon which the trial justice seems to have rested the defendant’s liability, is the negligence of defendant in not providing a sufficiently safe place for plaintiff’s overcoat. We think it clearly appears that defendant 'discharged its full duty to the plaintiff, when it provided, as we have seen, a wardrobe in a locked inclosure, inaccessible to the general public, and under the guard and supervision of a competent employee. There is no evidence that the employee, who was stationed by the desk at the single door, through which' alone (access to the wardrobe ocould be had, was not a competent person and not well suited to discharge the duties to which he was assigned. There is no evidence to warrant the conclusion that the defendant did Mot exercise such care in this case, under the circumstances, as could be reasonably expected from an ordinarily prudent employer in furnishing accommodations for tíre outer clothing of his employees. Moreover, the arrangement for the custody of the plaintiff’s overcoat, at the time of the loss, was the same as it had been during the whole period of the plaintiff’s employment. The plaintiff made no complaint as to the character of the protection afforded for the custody of his outer garments; and whatever risk there was in the methods that had been adopted by the defendant, and were in use at the time, he was fully cognizant of and must be said to have assumed. The plaintiff accepted service, with knowledge of the • conditions that prevailed at the time for the safe-keeping of. the outer garments of. employees, and cannot now be- permitted to assert,- as the basis of the defendant’s liability for the loss he sustained, that they were inadequate and ¡insufficient.

We think it clear upon the proofs that the defendant was not guilty iof any negligence or lack of duty to the plaintiff which caused the loss complained of, and that the court below erred in rendering judgment in his favor.

Judgment reversed, and new trial 'ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Giegebioh, J., concur.

Judgment reversed- and new trial ordered, with costs to appellant to -abide event.