Majority
p. 716Hill v. Board of Supervisors. (Supreme Court, General Term, Third Department. July 6, 1889.)
Headnote
1. Counties—Liabilities—Destruction of Property by Mob.Plaintiff sued the supervisors of a county under Laws N. Y. 1855, c. 428, which provides for a recovery when property shall be destroyed or injured in consequence
p. 717Argued before Learned, P. J., and Landon and Ingalls, JJ.
of any mob or riot, when the destruction or injury is not occasioned or in any way aided, etc., by the negligence of the owner. The evidence showed that three men, armed with clubs, went to plaintiff’s hotel, and asked for plaintiff, saying that they were going to kill her. Two female servants, who were in charge of the hotel at the time, told the men that plaintiff was absent. The men then called for beer, which was given them. They then asked the women to drink with them, which they did. After drinking six or seven times, the women drinking with them three or four times, they became boisterous, and began to break the furniture, etc. Meld, that the injury to the property was aided by the negligence of plaintiff’s servants, and that plaintiff could not recover.
2. Same—Limitation—Dismissal of Fobmer Action.
Section 5 of said act, providing that no action shall be maintained under it unless brought within three months after the injury, is not affected by Code Civil Proc. Ñ. T. § 405, allowing one year after the involuntary dismissal of an action commenced in time within which to bring another action, as section 414 excepts from the provisions of the chapter “a case where a different limitation is prescribed by law. ”
Appeal from judgment on report of referee.
Action by Sarah Hill against the board of supervisors of Rensselaer county, under chapter 428, Laws 1855, entitled “An act to provide for compensating parties whose property may be destroyed in consequence of mobs or riots.” The complaint avers that on the 19th day of July, 1886, the plaintiff was keeping the “Grove Hotel,” in the village of Lansingburgh, and on that day “a mob or riot of men” struck and intimidated her servants in charge, and thereupon destroyed a large amount of her personal property in the house. The testimony was to the effect that on the day in question the plaintiff left her hotel in charge of two female servants. That in the afternoon three men, known to the servants, and characterized by them in their testimony as “roughs,” came into the hotel, carrying clubs. They first inquired for the plaintiff, and said they came to kill her. They were told she was not at home, and were requested not to make any disturbance. They then asked for lager-beer, which was furnished them. They asked the two females to drink with them, which they did. They soon asked for and obtained another drink; drank six or seven times, the females drinking with them two or three times. They then began to dance and sing, and to assault the females, who in their fright ran out of the house. Then the men broke and destroyed furniture, glass-ware, pictures and frames, and other articles, to the plaintiff’s damage, as found by the referee, in the sum of $1,158.10. The plaintiff commenced a like action in the county court for the same cause of action within three months after the injury was done. This action was dismissed for want of jurisdiction. After-wards, and about nine months after the injury was done, this action was commenced. Theanswer alleges that the action was not commenced within three months, and contains a general denial. Judgment for plaintiff, and defendant appeals.
J5. L. Fursman, for appellant. James Lansing, for respondent.
Chapter 428, Laws 1855, under which this action is brought, provides for a recovery when property “shall be destroyed or injured in consequence of any mob or riot.” It also provides that no persons shall recover if it shall appear that such destruction or injury “was occasioned, or in any manner aided, sanctioned, or permitted, by the carelessness or negligence of such person. ” The three persons who developed into rioters did so in the plaintiff’s hotel, andafter her servants (she being a licensed vendor) had freely supplied them with intoxicating drinks. Possibly they assembled there with evil intent. If they did, the liquor they received at the plaintiff’s bar presumably fortified that intent. If they assembled there for purely social enjoyment, the liquor presumably developed their destructive propensities. In either case the plaintiff, by her servants in charge, was to some extent blamable. The case of Paladino v. Board, 47 Hun, 337 , seems to us to have been
p. 718
correctly decided, and is decisive against the plaintiff’s recovery. The suggestion is made that the plaintiff’s servants were induced to sell the rioters liquor through fear. The plaintiff retailed liquor for profit, and her servants accepted these persons as customers, and drank with them. The remark that they came to kill the plaintiff does not appear to have excited alarm. The plaintiff cites Ely v. Supervisors, 36 N. Y. 297 . There certain good people, becoming indignant over the disorderly, licentious, and criminal conduct of people who made a bawdy-house their rendezvous, tore it down. The court held that the bad reputation of the house and the bad conduct of its frequenters were not the proximate cause of its destruction. . The good people were misdirected, not through the agency of the proprietor of the house. He had nothing in common with them. His bad conduct could only lawfully lead them to seek lawful redress, and in no sense could he be held to have invited lawless violence. The case would have more resemblance to this if the patrons of the house had in their orgies torn it down. He who furnishes liquor to him whom the liquor infuriates is, in the cases mentioned in the civil damage act, liable for the consequences. In the case at bar it is only necessary to hold that to him the county is not an indemnitor against the consequences. Besides, we think this action is barred by the fifth section of the act. It provides that “no action shall be maintained under the provisions of this act, unless the same shall be brought within three months after the loss or injury.” This action was not brought within three months. An action was brought within three months in the county court, but was dismissed because the court had no jurisdiction. The plaintiff contends that section 405, Code Civil Proc., gives the plaintiff one year after the termination of the action in the county court in which to bring this action. But the statute of 1855 fixes the limitation-of three months. Section 405, Code Civil Proc., is, in chapter 4 thereof, entitled “Limitation of the Time of Enforcing a Civil Bemedy, ” and section 414 excepts from the provisions of the chapter “a case where a different limitation is prescribed by law.” Hammond v. Shepard, 3 N. Y. Supp. 349 . The judgment must be reversed, a new trial granted, costs to abide the event.
All concur.
Learned, P. J., and Ingalls, J., concur.
Cases cited
- Ely v. Board of Supervisors 36 N. Y. 297 p. 718