Statement of case. lost. (Terpenning v. Corn Exchange Ins. Co., 43 N. Y. 282; 1 Greenl. Ev., § 440; 1 Phillips' Ev. 290; Clark v. Baird, 5 Seld. 183; Bedell v. T. I. R. R. Co., 44 N. Y. 267; McCormick v. Railroad Co., 49 id. 303; Gouge v. Roberts, 53 id. 619; Jay v. Hopkins, 5 Denio, 84; 3 Abb. N. Y. Dig. 70, § 1024; Culver v. Haslam, 7 Barb. 320; Chambers v. Cogney, 85 N. Y. Sup. Ct. 174; Harris v. Panama R. R., 3 Bosw. 7; Morehouse v. Matthews, 2 Conn. 514.) George G. Munger for respondent. A mere reduction of price, even though accompanied by a promise or agreement as to length of stay, does not alter the relationship of landlord and guest. (17 Hun, 279; Pinkerton v. Woodward, 33 Cal. 557; Berkshire Woolen Co. v. Proctor, 7 Cush. 417; Norcross v. Norcross, 53 Me. 169; Lima v. Dwinell, 7 Alb. L. J. 44; Story on Bail., § 477; Hall v. Pike, 100 Mass. 495; Jolie v. Cardinal, 35 Wis. 118; Lusk v. Belote, 22 Minn. 468; Richmond v. Smith, 8 B. & C. 000; Parker v. Flint, 12 Mod. 255; Walling v. Potter, 35 Conn. 183; 5 Tenn. 273; 5 Barb. 568; Allen v. Smith, 12 C.,B. [N. S.] 618; Kisten v. Hildebrand, 9 B. Monr. 72; Bac. Abr., Inns and Innkeepers, chap. 5;' Story on Bail., § 177.) The finding of the referee that there was no special contract is essentially one of fact, and is supported by sufficient evidence, and the Court of Appeals will not reverse the conclusion of the referee on such a question after it has been passed upon by the General Term. (Code of Civil Proc., §§ 1337, 1338; Griffin v. Marquardt, 17 N. Y. 28; Dain v. Wyckoff, 18 id. 45; Priest v. Price, 3 Keyes, 222; Colwell v. Lawrence, 38 N. Y. 71; Cady v. Allen, 18 id. 573; Metcalf v. Mattisons, 32 id. 464; Ostrander v. Fellows, 39 id. 350; Davis v. Spencer, 24 id. 386; Wegman v. Childs, 41 id. 159; Burgess v. Simonson, 45 id. 225; Dayton v. Borst, 31 id. 435; Newton v. Bronson, 13 id. 587.) The fact that at the time of the loss meals were furnished to plaintiff from the general restaurant of the hotel, when ordered and only when ordered à la carte from the regular bill of fare as furnished to all customers, and were paid for by plaintiff Statement of case. at the regular prices set down on such bill of fare, without reduction of any kind, would establish the liability of the innkeeper, even though plaintiffs had rooms outside of the hotel, and from other parties. (McDonald v. Edgerton, 5 Barb. 560; Parker v. Flint, 12 Mod. 255; Bennett v. Ditson, 5 Term R. 273; Kopper v. Willis, Gen. Term, N. Y. Com. Pleas, Jan. 31, 1881; Daily Reg., Jan. 31, 1881; Kopper v. Willis, Gen. Term, N. Y. Com. Pleas, Jan., 1881; Thompson v. Lacy, 3 B. & Ald. 283; Parkhurst v. Foster, 1 Salk. 387; Cromwell v. Stevens, 3 Abb. N. S. 35; Willard v. Reinhardt, 2 E. D. Smith, 148; 25 Wend. 653; 9 Humph. 179; Stewart v. McCready, 24 How. Pr. 62; Lima v. Dwinelle, 7 Alb. L. J. 44; Wintermute v. Dwinnelle, 5 Sandf. 147; Manning v. Wells, 9 Thomp. 746; Stewart v. Seymour, Anthon's Law Student, 51; Mower v. Feathers, 61 N. Y. 64.) Any person who comes to a hotel or an inn, recognized and admitted to be such, for the purpose for which such hotel or inn is kept, and whom the landlord is bound to receive, becomes a guest, and the landlord's liability as insurer attaches unless he has relieved himself therefrom by posting the notices required by law. (Mowers v. Feathers, 61 N. Y. 34; Richmond v. Smith, S B. & C. 9; Bennett v. Ditson, 5 Term R. 273; Grennell v. Cook, 3 Hill, 488; Kopper v. Willis, Gen. Term, Com. Pl., Daily Reg., Jan. 31, 1881; Ingoldsby v. Wood, 36 Barb. 452; 33 N. Y. 577; Catlin v. Hobbs, 12 Mich. 52; Story on Bail. 423, § 476; Humph. [8th ed.] 179; Burgess v. Clements, 4 M. & S. 206; Fell v. Knight, 8 M. & W. 269; Farnsworth v. Packard, 1 Stark. 249; Edw. on Bail. [1st ed.] 394; Ambler v. Skinner, 7 Robt. 561; Caly's Case, 8 Coke, 63, note b; Walbrook v. Griffith, Moore, 876; Warbroke v. Griffin, 2 Brown & Golds. 254; Bacon's Abr., Inns and Innkeepers, chap. 5.) A contract, as to length of stay and prices, made with one who comes to an inn for the purpose for which an inn is kept, does not alter the legal rights or liabilities of landlord or guest, and is not a special contract. (Piper v. Manny, 21 Wend. 282; Richmond v. Smith, 8 B. & C. 9.) Plaintiff was competent to testify as to the question of the value of the Opinion of the Court, per MILLER, J. articles lost. (Merrill v. Grinnell, 30 N. Y. 594; Smith v. Hill, 22 Barb. 656; Watson v. Bauer, 4 Abb. Pr. 273; Joy v. Hopkins, 5 Denio, 84; Derby v. Gallup, 5 Minn. 134; Smith v. Frost, 32 N. Y. Supr. Ct. 87; Clark v. Baird, 9 N. Y. 196.) The question whether the relation of innkeeper and guest existed between the plaintiff and the defendants was one of fact, and having been found in favor of the plaintiff, will not be reviewed by this court. (Hall v. Pikey, 100 Mass. 495; Jolie v. Cardinal, 35 Wis. 118; McDonald v. Edgerton, 5 Barb. 560.) MILLER, J. The plaintiff claims to recover in this action the value of property stolen while a guest at the hotel of the defendants in the city of New York. The findings of the referee show that the plaintiff was an inmate of the defendants' hotel from November, 1873, until June, 1874, and that the articles lost were taken from the rooms occupied by plaintiff in the month of March, 1874; that the husband of the plaintiff, General Hancock, was an officer in the United States army, and that in November, 1873, he applied for rooms and board at the defendants' hotel for himself and family; that after some conversation between the defendants and said Hancock, in regard to himself and family remaining at defendants' hotel, in which certain rooms, in a private house adjoining said hotel, which the defendants were then using in connection with the same, were mentioned, it was said by General Hancock that he expected to remain until the following summer, provided every thing was satisfactory, and provided also he was not sooner ordered elsewhere on military duty; that the defendants offered the terms which they would take for said rooms, which terms General Hancock accepted on the understanding that he should continue to occupy them until the next following spring or summer, provided every thing was satisfactory, and provided also he was not sooner ordered away on military duty. The referee also found that General Hancock and family, immediately prior to their going to the hotel of the defendants, had been boarding at another hotel in New York Opinion of the Court, per MILLER, J. city, and had no permanent home anywhere; that prior to the year 1873 and ever since that time the home of General Hancock has been wherever his military head-quarters were, and that such head-quarters during that time have been at different places. The referee refused to find, as requested by the defendants, that any substantial agreement had been made by General Hancock as to the length of time he and his family should occupy said rooms. We think that the finding of the referee as to the understanding under which General Hancock and family came to the defendants' hotel is sufficiently supported by the evidence,, and that his refusal to find that there was any substantial contract as to time between the parties was fully justified. It appears very distinctly by the proof that no specified time was absolutely fixed or agreed upon for the stay of General Hancock and family at the defendants' hotel, and no express contract was made in regard to the same. According to the evidence the General and family had a perfect right to leave at any time after the contract was made, and were not bound to remain for even an entire day, the moment General Hancock was dissatisfied he and his family had a right to leave the hotel, so also if ordered elsewhere he had a right to leave. It rested with him in these contingencies to do and act exactly as he pleased. It was a fluctuating agreement, depending upon his own will and caprice, and it cannot be said that the minds of the parties met as to any specific time whatever. The defendants could not have recovered damages by reason of his leaving at any moment. As an officer in the army his duty might at any time have called him away to some distant and remote place; and individually he had the right to say when he should go without consulting the defendants. Really and actually he was but a transient guest, who had the right to come and to go whenever he pleased. 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, and to make them chargeable as mere boarders it should be shown Opinion of the Court, per MILLER, J. satisfactorily that an explicit contract had been made which deprived them of the privileges and rights which their vocation conferred upon them as passengers or travelers. General Hancock and the defendants evidently had this in view in the conversation which took place between them in regard to the former's stay at the latter's hotel. The fact that General 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, General 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. The defendants kept a hotel or inn taking care of transient guests, some staying for a longer, some for a shorter period. General Hancock, for himself and family, paid for their meals the same as other transient guests, and by express agreement they were at liberty to leave at any time they saw fit. Under these circumstances no reason exists why they should not be protected as well as the other travelers or guests at the hotel. It is very evident, from the testimony, that no absolute and express contract was made for the hiring of the rooms and the board of General Hancock and his family for any stipulated period of time, and the most that can be claimed, on the part of the appellants, is |