Hill v. Board of Supervisors — 24 N.Y. St. Rep. 944

Majority

p. 944

Sarah Hill, Resp’t, v. The Board of Supervisors of Rensselaer County, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 6, 1889.)

Headnote

1. Mob or riot—Laws 1855, chap. 428—Action under—When recovery NOT HAD.

The action was brought to recover under Laws 1855, chapter 428. The plaintiff keeps a hotel, and while absent therefrom three men came to the hotel inquiring for plaintiff, saying that they had come to kill her. When told she was not at home, they asked for lager beer, which was furnished them by the servants left in charge of the hotel. After drinking several-times they became intoxicated, and broke and destroyed furniture, glass, etc., belonging to plaintiff. The plaintiff commenced an action in the county court within three months after the injury, but it was dismissed for want of jurisdiction. This action was begun nine months after the injury. Held, that the plaintiff by her servants having freely supplied the rioters with intoxicating drinks, she was to some extent blamable, and that being so to blame under the act, no recovery can be had.

2. Same—When action barred—Laws 1855, chap. 428, § 5.

Held, that the action was barred by section 5 of the act, which requires the same to be brought within three months after the injury.

8. Same—Section 405, Code Civ. Pro.—Application.

Held, section 405, Code Civil Procedure, relating to the comm cement of an action, does not apply to a case like the present, where a different limitation is prescribed by law.

Appeal from a judgment in favor of the plaintiff entered in Rensselaer county, upon the report of a referee.

The action is brought under chapter 428, Laws of 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 ser

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vont; 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. Afterwards, and about nine months after the injury was done, this action was commenced. The_ answer aEeges that the . action was not commenced within three months, and contains a general denial.

E. L. Fur smart, for app’lt; James Lansing, for resp’t.

J.—Chapter 428, Laws of 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 person shaE recover if it shall appear that such destruction or injury “was occasioned, or in any manner 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, and after 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 of Supervisors of Westchester County ( 47 Hun, 337 ; 14 N. Y. State Rep., 542), seems to us to have been correctly decided, and is decisive against the plaintiff’s recovery. The suggestion is made that the plaintiff’s servants were induced to seE 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 of Niagara County ( 36 N. Y., 297 ). There certain good people, becoming in

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dignant 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 had 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 Procedure, 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 1885 fixes the limitation of three months. Section 405 of the Code Civil Procedure, is, in chapter 4 thereof, entitled, “ Limitation of the time of enforcing a civil remedy;” and section 414 excepts from the provisions of the chapter “a case where a different limitation is prescribed by law.” Hammond v. Shephard, 50 Hun, 322 -3.

The judgment must be reversed, a new trial granted, costs to abide the event. .

Learned, P. J., and Ingalls, J., concur.