Friedman v. Breslin

Woodward, J. : • A review of this case discloses no sufficient reason for a reversal of the judgment or order appealed from. Bertha Myers, plaintiffs assignor, about August 1, 1898, applied to the hotel conducted by the defendant for board, and thereafter became a guest at the hotel. She had some jewelry with her, which at various times she deposited in the office safe, until upon a certain occasion, when she was about to leave the hotel for a few hours, at the suggestion of the clerk, the jewelry was left in her trunk in her room, the keys of the room and of the trunk being left in the custody of the clerk, who agreed to look after them, and who assured her that the jewels would be safe. There was some conflict- of evidence upon this point, but the jury has decided that the plaintiff’s version is true, and there is evidence to support the conclusion. Plaintiff’s assignor was absent from the hotel from eight o’clock in the morning until about one o’clock in the afternoon, and on going to her trunk early in the evening the jewels were missing. This action was brought to recover the value of the jewelry, the jury found a verdict for the plaintiff, and from the judgment entered upon this verdict and from an order denying a motion for a new trial, appeal comes to this court. It is urged by the defendant that the clerk of the hotel had only limited authority; that he was merely a rooming clerk, who was not authorized to give plaintiff’s assignor any assurance as to the safety of her jewel's, except as they .were deposited in the office [270] safe ; but there was evidence in the case from which the jury might properly find, that the clerk was in fact the manager, and this question was submitted to the jury without exception on the part of the defendant, and the verdict is conclusive upon this point: .We are of opinion- that the provisions of chapter 421 of .theLawsof 1855, as; amended by chapter 227 of the Laws of 1883. and by chapter 284 of .the.Laws of 1892, have no relation to the- facts presented by- the record on this appeal. That statute was enacted for the protection of proprietors of hotels; but if the rooming clerk was the manager of the hotel and authorized the plaintiff’s assignor to leave her jewelry in her room, he- must be deemed to have waived any rights which the defendant might have had under the law. -It is well established in this State that a party may waive a statutory and even a constitutional provision made for his benefit, and that having once done so -he cannot afterward, ask for its protection. (Matter of Cooper, 93 N. Y. 507, 513, and authorities there cited.) . The learned.court at Trial Term refused to hold the defendant to the common-law liability as an insurer, but charged the jury that the defendant was only -liable for’ negligence, which wras as favorable to the defendant as thé law would permit. The objection that the evidence of value was improperly proven does not seem to be sustained by the record. We think that, under, the rule laid down in Berney v. Dinsmore (141 Mass. 42), it was competent for the plaintiff to call attention to the ring worn by his assignor for the purpose of comparison with some of -the jewels lost, and -as á foundation- for the -opinion of an expert as to the .probable value of the diamonds which were alleged to have been stolen. We are also, of the opinion that the objection to the question “ Have you shown the diamonds in the. ring you have on to Mr. Wise, am expert?” did not call the attention of the court to'the-point now urged, that Mr. Wise had not, at that timé, been shown to he an expert. The objection was that the question was “ incompetent, irrelevant and immaterial,” and as- the evidence was clearly competent as a.means of comparison, and was not objected- to because of its form, the .ruling, of the court will not be disturbed. The objections having been specified, the ruling must -rest upon the objection stated, unless the evidence was. in no aspect of the case oompe [271] tent, (Tooley v. Bacon, 70 N. Y. 34, 37.) In the case at bar Mr. Wise was afterwards put upon the stand and testified as an expert without objection -upon that score, and no right of the defendant was infringed by the form of the question under discussion which would warrant interference on the part of this court. The judgment and order appealed from should be affirmed. All concurred. Judgment and order affirmed, with costs.