Honig v. Riley

126 Misc. 320, 213 N.Y.S. 380, 1926 N.Y. Misc. LEXIS 1140, 1926 N.Y. App. Div. LEXIS 11735

Opinions

Mullan, J.

The facts, and the statutory law invoked by the defendant, are sufficiently stated by Mr. Justice Spiegelbekg, in his opinion in the court below (reported in 124 Misc. 809). I am not prepared to express any general opinion in respect of the legislative intent that governed the making of this remarkable statute (General Business Law, § 201, as added by Laws of 1924, chap. 506),

* and I believe we should confine ourselves sharply to a decision upon the precise situation now before us. I agree with the learned trial justice that it is not conceivable that the Legislature intended that no matter how a coat or other bailed article might be lost to the bailing guest, he should be restricted in his recovery to a maximum of seventy-five dollars, in case he failed to place a valuation upon the article, and to procure a writing stating such valuation. From such a construction it seems to me that it would necessarily follow that the Legislature intended to permit the proprietor of a restaurant to steal a coat, or other bailed article, having a value in excess of seventy-five dollars, and be civilly liable only to the extent of seventy-five dollars. Of course, no matter what it was that the instigators of this legislation may have had in mind to accomplish, there was no intention on the part of the Legislature to work such an immoral and unconstitutional result. If the “fault or negligence ” phrase is not to be deemed placed after, and made part of, the seventy-five dollars maximum clause, the seventy-five dollar sum is a maximum even if the loss were due to the bailee’s “ fault.” The words “ fault or negligence ” were apparently intended completely to cover all the ways in which, by the act or omission of the restaurant proprietor, the bailed article could disappear. Theft, or intentional conversion, would thus come within the meaning of “ fault.” As it is unthinkable that the Legislature should desire to cut down the civil liability for theft, I believe we are required so to read the statute as to prevent such a construction of it; and I thus conclude, as did the learned justice below, that the “ fault or negligence ” phrase was intended to attach to the seventy-five dollars maximum provision. Perhaps,, because of the presumption (Claflin v. Meyer, 75 N. Y. 260) we are concluding that the Legislature said a wholly unnecessary thing; but, at least, by incorporating the phrase as to “ fault or negligence ” we are acquitting the Legislature of saying a meaningless thing.

Judgment and order affirmed, with twenty-five dollars costs, with leave to defendant to appeal to Appellate Division. ■

QinP8 amended by Laws of 1925, chap. 400.— [Rep.

Since amended by Laws of 1925, chap. 400.— [Rep.