their horses and attendants, for a reasonable compensation. 5 Bacon, Abr. Inns,' &c., 228; Story on Bailments, § 475. The person or persons undertaking this public employment were bound to take in and receive all travelers and wayfaring persons." It is needless to multiply authorities. They are unanimous in conveying the idea that the relationship of innkeeper and guest applies to travelers, and I have discovered none which gives any other intimation.

The facts in this case fail to show that, when the plaintiff sustained the loss for which she seeks to make the defendants responsible, the relationship of innkeeper and guest existed. She went to Albany in September, 1902, having just prior thereto married John M. Crapo, a business man of that city. With her husband she lived in various boarding houses until September, 1903, when they took rooms at the Ten Eyck Annex, where, with the exception of an absence of about five weeks at Bar Harbor, plaintiff continued to reside until February, 1905. The loss occurred in January of the latter year. Plaintiff's husband died at the Annex in November, 1904. He had resided and been in business in Albany since his marriage to plaintiff, and prior thereto. After their marriage he transferred his business to the plaintiff, and she is still conducting the same in Albany. There is no pretense that either she or her husband had any other residence than at the Ten Eyck Annex during the time they were there. Plaintiff testified on the trial that she resided at the Ten Eyck Annex at the time of the loss and injury to her property. When she first went there, she made the agreement for the rooms which she and her husband occupied. The defendants' evidence is that she received special rates which were charged to permanent boarders. Plaintiff denies knowledge of this, and says nothing was said to her on that point. On this motion her testimony must be assumed to be true; but she states that, although the hotel clerk exhibited to her various suites of rooms, he referred her to the defendants for her final arrangements, and, although different rooms were occupied at various times during her stay at the Annex, in each instance the hotel clerk either saw defendants or referred plaintiff to them for prices and final arrangements. She moved into her rooms her piano, thus indicating more than an intention to make a temporary sojourn. The property which is the subject of this action was not of a character such as is usually taken to hotels by transient guests. This statement of facts, which is a brief résumé of the plaintiff's testimony in her own behalf, shows that the Annex was the plaintiff's home, her permanent abiding place, and that she was not there merely for temporary accommodation or as a transient guest. It is

true plaintiff testified that, when she first hired the rooms, the defendants asked whether she wanted them for 1, 2, or 3 weeks, and that she told them she could not say, as she was "contemplating housekeeping." Her subsequent residence of 17 months at the Annex proves that if, when she first went there, she contemplated housekeeping, such contemplation never ripened into an intention. I do not mean to say that a resident of Albany may not go to one of the hotels of that city and establish between himself and the hotel keeper the relation of innkeeper and guest. It may be assumed for the sake of the argument that such relationship existed between these parties when plaintiff first went to the Annex; but, if such was the case, that relationship by the lapse of time was lost long before her property was lost. The Ten Eyck is an inn where transient guests are received. But the evidence is that permanent lodgers also reside there, and as to the latter the defendants certainly are not innkeepers simply because they keep an inn. At common law an innkeeper was bound to receive all guests, provided he had accommodations and they were not objectionable persons. It cannot be claimed here that these defendants were under any legal obligation to permit the plaintiff to occupy the rooms in question. She at no time had a right to demand the same. In Mowers v. Fethers, 61 N. Y. 38, 19 Am. Rep. 244, it was said: "Where he [the innkeeper] is not bound to receive and entertain the person as his guest, the strict rule of common-law liability for the preservation of his property does not obtain. The obligation to respond for injury to property depends upon his duty to receive and entertain as an innkeeper, and they must stand or fall together. Grinnell v. Cook, 3 Hill, 485 [38 Am. Dec. 663]; Ingalsbee v. Wood, 36 Barb. 455; Id., 33 N. Y. 577 [88 Am. Dec. 409]; Hulett v. Swift, 33 N. Y. 571 [88 Am. Dec. 405]."

Great stress is placed by the plaintiff on the case of Hancock v. Rand, 94 N. Y. 1. That case was decided by a bare majority of the court, and while, of course, it is controlling in reference to a similar state of facts, nevertheless it is manifest that the doctrine of innkeeper's liability was there carried to the limit. But there is a wide distinction between that case and this. In that case plaintiff was an inmate of the hotel in question for 7 months, and had been there 4 months, when her property was taken. In this case plaintiff was at the Annex about 17 months. But the controlling feature in that case was that plaintiff was the wife of Gen. Hancock, an officer in the United States Army, without a permanent residence anywhere, and continually subject to marching orders. The opinion in that case fully carries out the idea above exemplified that the relationship of innkeeper and guest applies to

travelers, and places Gen. Hancock in that category, as is manifest from the following extracts therefrom, the italics being mine: "Officers of the army and navy, and soldiers and sailors, who have no permanent residence which they can call home, may well be regarded as travelers or wayfarers, when stopping at public inns or hotels.... The fact that Gen. Hancock was subject to marching orders at any moment, and that this contingency was expressly provided for, makes a wide distinction between the case at bar and one which possesses no such features. This difference, and the circumstances connected with it, should be sufficient to take this case out of the ordinary rule which applies between an innkeeper and a permanent boarder, and fully sustains the rule we have laid down, without disturbing the relationship or obliterating the distinction. which exists between a guest and a boarder. In view of the evidence presented, and the findings of the referee, we think the defendants are bound within the reason of the rule under which an innkeeper is held liable for the goods and property of his guest. As a soldier, Gen. Hancock was unable to acquire a permanent home, and by reason of his profession was obliged to live temporarily and for uncertain periods of time at different places, and with innkeepers and others who make provision for the entertainment of guests and travelers. He was necessarily a transient person, liable to respond to the call of his superiors at any moment, and to change the locality of himself and family. . . . There would seem to be but little question that the weight of the testimony is in favor of the proposition that they were travelers or wayfarers, and that there was no hiring of the rooms of the defendants for a season or a specified time. . . . As we have already seen, the general, being a soldier, and liable to be called to distant and remote places by order of the government, and thus obliged to change his headquarters, had no residence in the city of New York, and when stopping at a hotel awaiting orders, with the right to leave at any moment, he must be regarded as a transient person, the same as any other traveler or passenger." The case of Metzger v. Schnabel, 23 Misc. Rep. 698, merely follows Hancock v. Rand, supra. It appears from the opinion that there was "direct testimony that he" (Metzger) was an "officer in the German army and a wayfarer here." The Hancock Case, it seems to me, is clearly distinguishable from the present case.

...

I have not overlooked the fact that no definite time was fixed on, and that the parties were at liberty on either side to terminate the agreement at any time. While such fact might be an important, or even a controlling, circumstance in some cases, it cannot have much significance where a party lives in a hotel for as long a period as the

plaintiff did in this case. It is not possible to regard her in the light of a transient guest. I believe that no case can be found which goes to that extent. "An innkeeper is subject to extraordinary liability, and a person claiming to enforce such liability must show a case clear beyond all reasonable doubt." Ingalsbee v. Wood, 36 Barb. 455. As it appears from the plaintiff's testimony that the relationship of innkeeper and guest did not exist between the defendants and herself, it follows that the complaint must be dismissed.

Complaint dismissed, with costs.2

2 See also Berkshire Woollen Co. v. Proctor (1851), 7 Cush. 417: Lusk v. Belote (1876), 22 Minn. 468; Fay v. Pacific Improvement Co. (1892), 93 Calif. 253: Meacham v. Galloway (1899), 102 Tenn. 415; Hackett . Bell Operating Co. (1918), 181 App. Div. (N. Y.) 535; Notes, 4 Virginia L. Rev. 151, and 31 Harvard L. Rev. 1166.

CHAPTER IX.

THE COMMENCEMENT OF THE

UNDERTAKING.

CLARA TURNER COMPANY v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY.

86 Conn. 71. 1912.1

HALL, C. J. The complaint contains no averment of negligence upon the part of the defendant in any capacity. The finding shows no offer of proof of negligence. The sole ground of the alleged liability of the defendant is that, at the time of the fire, the goods were in its possession as a common carrier. The averment of paragraph 4 of the complaint is that, "while said property was in the possession of said defendant as common carrier," said property was destroyed. In order to recover in this action, the plaintiffs were required to prove this averment. The trial court held that it had been proved. The defendant's appeals to this court question the correctness of the conclusions of the trial court, as above stated.

The defendant's principal claims before us are, in substance, these: First. That even if it be assumed that, in receiving and transporting the goods in question, the defendant was to act as a common carrier, yet the admitted facts and the facts proved show that, before the fire, there had been no such completed delivery to the defendant of the goods, for transportation, as rendered it liable as a carrier, for their loss. Second. That if the goods can be regarded as having been completely delivered to the defendant as a carrier, yet by the special methods in which they were to be delivered and carried, and by the terms of the release signed by the plaintiffs' agent, the defendant became a private and not a common carrier of the goods, and that the defendant was relieved from the ordinary strict liability of a common carrier, and from any liability for the loss of the goods in question.

The law is well settled that, until the goods to be carried are delivered for immediate transportation, the receiver does not hold

1 The statement of facts is omitted. The facts sufficiently appear in the opinion.- ED.

561