Ordemann v. Manson , 127 N.Y.S. 1026 ( 1911 )

BIJUR, J.

The only point at issue between the parties is the lia_ bility of the plaintiff, as landlord, for damage to the contents of a trunk stored in the basement of the premises by the defendant, the tenant. The damage resulted after the basement had been flooded, in that articles of clothing in the trunk thereafter became mildewed.

The learned court below was of the opinion that the landlord was guilty of gross negligence, and that, therefore, even though a gratuitous bailee, she was liable for the damage. Even assuming, however, that the familiar rule laid down in First National Bank v. Ocean National Bank, 60 N. Y. 278, 19 Am. Rep. 181, be applicable, the landlord would be held only to such care as the circumstances of the bailment would require. The alleged negligence consisted, not in an omission to guard the property in the ordinary sense of that word, but in failure to remove from the trunk articles of apparel to dry them in some appropriate place. But there is no evidence that the landlord or her agents knew, or were chargeable with knowledge, that the trunks contained anything. Indeed, the language of the lease and the circumstances rather negative any inference to that effect. Moreover, it is exceedingly doubtful whether the exercise of reasonable care, under the circumstances, should be held to lead the landlord to open receptacles containing a tenant’s property and to exercise an independent judgment as to the disposition of such contents. The tenant had gone to the country for the summer, and, if there was any negligence, it was his in not notifying the landlord or her agent of the need of caring for the articles thus left behind.

But we are not confined to that point for a determination of this case, because the lease expressly provides that the storerooms in the basement are furnished gratuitously for the accommodation of the tenants, “and that tenants using the same for any purpose do so at their risk, and upon the express stipulation and agreement that the landlord shall not be liable for any loss, damage, or injury whatsoever.” The comprehensive and positive character of this provision plainly differentiates this case from the one cited by respondent. Sinischalchi v. Baslico, 92 N. Y. Supp. 722.

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