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Myra Owen, as Administratrix, etc., of Paul Owen v. Benjamin Straight, Doing Business under the Firm Name and Style of Thirteenth Lake Lodge, Appellant Peter Owen v. Benjamin Straight, Doing Business under the Firm Name and Style of Thirteenth Lake Lodge
Judgments and orders affirmed, with costs in one action. Hill, P. J., McNamee, Bliss and Heffernan, JJ., concur; Crapser, J., dissents, with a memorandum. The history of the case is given in Owen v. Straight (239 App. Div. 622). Judgment is affirmed on the ground that evidence was adduced on behalf 893 of the plaintiffs from which negligence could be found. Under the evidence, irrespective of the origin of the fire, it was a question of fact whether the defendant had used reasonable care to safeguard his guests.
Crapser, J. I dissent and vote to reverse the judgments and dismiss the complaints. The plaintiffs were guests and were as a result invitees. It was, therefore, the duty of the landlord to take reasonable care to prevent damage to the guests from unsual danger which the defendant knew or ought to have known.
Under the evidence in this case (the hotel being an Adirondack lodge capable of accommodating in the burned building not more than nineteen guests) the landlord was not under any duty to furnish a night watchman. There was no evidence showing the defendant negligent. (McLenan v. Segar, L. R. [1917] 2 K. B. 325.)