By the Court — PECKHAM, J.

The statute provides, that if a "guest shall neglect to deposit such money, jewels, or ornaments in such safes (the safe required to be kept by the hotel keeper), the proprietor of such hotel shall not be liable for any loss of such money, jewels, or ornaments, sustained by such guest, by theft or otherwise." (Laws of 1855, p. 774.)

The first question that arises here is, did the plaintiff neglect to deposit his money, jewels and ornaments, in the safe which he knew the defendant kept for that purpose?

The referee has found (and not without evidence) that the plaintiff, in the forenoon of the day he left the hotel, "presented to defendant's book-keeper a package sixteen inches long, ten inches wide, and seven inches high, wrapped in an oil cloth, and tied up with a strong cord, and requested him to put said package in the safe; that the book-keeper told plaintiff there was no necessity for that; to take it to his (plaintiff's) room; saying it would be just as safe there."

This package contained the jewels and ornaments sued for; but the plaintiff did not state its contents, nor did the book-keeper inquire what it contained.

I think this was a "neglect to deposit," within the meaning of the statute. The book-keeper did not know that money, jewelry or ornaments had been offered him. Hence, he did not refuse to receive them. Suppose this package had been of the size of an ordinary trunk; would the clerk have been compelled to receive it? Clearly not; because, first, there was nothing to notify him that it contained money, etc.; second, so large a package was not within the meaning of the statute; no safe would probably have apartments to receive it. There was nothing about this package to indicate that it was not appropriately sent to the room of the guest. The defendant should not be held to the responsibility of refusing to receive money, jewels, etc., unless he did it knowingly. It is not so found, nor is there any evidence to prove such a fact.

The burden rests with the guest to make this deposit. He neither made nor offered to make it, within the meaning of the statute.

Simply offering a package of this size, without disclosing its contents, is not offering to deposit money, jewels, or ornaments.

Had the clerk been made aware of the contents of the package, and had then directed it to be taken to the plaintiff's room, he would have waived the protection of the statute.

It is also insisted that, after this jewelry, etc., was packed, and notice given to the clerk to bring the trunk down immediately, with the intent to leave the hotel, defendant is liable for any loss thereof, thereafter occurring in the hotel, whether the jewelry had been deposited in the safe or not.

The statute is very broad in its language, that, "if such guest shall neglect to deposit, etc., the proprietor shall not be liable for any loss of such money, etc., sustained by such guest, by theft or otherwise."

This was evidently aimed at losses that should occur by such neglect. It could have no reference to losses at the inn, occurring before the guest had the opportunity to make such deposit, or after he had packed his trunk, locked his room, and given notice for immediate departure, etc., delivered up the key of his room to the clerk, to have his trunk brought down. ( Stanton v. Leland, 4 E.D. Smith, 88.)

Had the valuables been in the custody of the clerk in the safe, they must have been delivered to the guest to be packed prior to his departure, and if lost thereafter without the fault of the guest, the landlord would be liable.

The liability of the landlord is discharged, so far as the remedy is applied; so far as the peril is removed. It should not extend, and was never designed to extend, any further.

It may be remarked, that a considerable portion of the property recovered for, was neither money, jewels, or ornaments, and hence, the landlord was not exempt from liability for the loss thereof, under this statute. It was neither within the statute or the notices posted in the hotel.

In the view taken of this case, the exceptions taken to the exclusion of evidence become immaterial.

Purvis v. Coleman ( 21 N.Y., 111), has no application to this case.

The order for a new trial is reversed, and the judgment upon the report of the referee is affirmed, with costs.

All concur, except ANDREWS, J., not voting.

Judgment accordingly.