CASES DECIDED IN THE COURT OF APPEALS OF THE STATE OF NEW YORK, COMMENCING NOVEMBER 20, 1883. ALMIRA HANCOCK, Respondent, v. GEORGE W. RAND et al., Appellants. Persons belonging to the army and navy, who have no permanent residence they can call home, are to be regarded as travelers when stopping at public inns; to deprive them of their privileges as such, and to give them the character of boarders merely, it must appear that an explicit contract was made to that effect. Plaintiff and her husband H., who was an officer in the United States army, having no permanent home, but living where military duty called him, occupied rooms in the defendant's hotel under an agreement, by which they were to so occupy, upon terms specified, until the spring or summer following, provided every thing was satisfactory, and the husband was not sooner ordered away on military duty. H. and family took their meals at the hotel restaurant, paying for each meal the same as other guests. No notice was posted in said rooms as prescribed by the Innkeepers Act (Chap. 421, Laws of 1855). In an action to recover the value of property of plaintiff, stolen from said rooms while so occupied, held, the facts justified a finding that the relation between the parties was that of innkeeper and guest; and so that defendants were liable. It appeared that defendants kept separate apartments for boarders and for transient persons, and that H. and family were registered among the former. Held, in the absence of proof that H. was aware of this fact, defendants' liability was not affected thereby. It appeared that H. and family for several years prior to their going to defendants' hotel had been boarding at another hotel in the same city. Statement of case. Held, that this did not affect the question of their relationship with defendants, or establish that they were citizens of that city. Vance v. Throckmorton (5 Bush, 41), Manning v. Wells (9 Humph. 746), Hursh v. Byers (29 Mo. 469), Pollock v. Landis (36 Iowa, 651), Lusk v. Belote (22 Minn. 468), distinguished. (Argued October 10, 1883; decided November 20, 1883.) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 28, 1881, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. The nature of the action and the material facts are stated in the opinion. Theo. C. Sears and Chas. P. Crosby for appellant. Defendants' liability to plaintiff can arise in this action only from the fact that she was a traveler or passenger. (Mowers v. Feathers, 61 N. Y. 34; Drope v. Thain, Tatch. 127; Grimstone v. Innkeeper, Hetter, 49; Chitty ou Contracts, 476; Bacon's Abr. 228; Story on Bailments, § 475; Parsons on Contracts, 145; Thompson v. Lacy, 3 B. & Ald. 283, 286; Edwards on Bailments, 388.) General Hancock and family were not "guests" of the defendants, because they were not travelers or passengers. (17 Hun, 283; Story on Bail., § 477; Edwards on Bail., 394; 2 Parsons on Contracts, 150; Berkshire Woolen Co. v. Proctor, 7 Cush. 417; Pinkerton v. Woodward, 33 Cal. 557; Norcross v. Norcross, 53 Me. 169; Walling v. Potter, 35 Conn. 583; McDaniels v. Robinson, 26 Vt. 316; Vance v. Throckmorton, 5 Bush [Ky.], 41; Manning v. Wells, 9 Humph. [Tenn.] 746; Hirsh v. Byers, 29 Mo. 469; Pollock v. Landis, 36 Iowa, 651; Lusk v. Belote, 22 Minn. 468; Chamberlain & Co. v. Masterson, 26 Ala. 371; Ingallsbee v. Wood, 33 N. Y. 577.) The defendants did not receive the plaintiff into their hotel as a guest, but as a permanent boarder. (Stewart v. McCready, 24 How. 62; Willard v. Reinhart, 2 E. D. Smith.) The referee committed error in the adınission of the testimony of General and Mrs. Hancock, as to the value of the articles |