p. 863The People ex rel. George H. Nichols et al., Resp'ts, v. The Board of Supervisors of Queens County, App’lt.(Supreme Court, General Term, Second Department,Headnote
•County—Protection of property—Mandamus.In a proceeding for a mandamus to compel the hoard of supervisors to audit and allow a claim for moneys advanced to the sheriff to pay officers employed by him to protect the works of relator from threatened destruction and injury by strikers the proof showed acts of violence to those who continued to work which occurred at a little distance from the works, but it was not established that at all hazards the works were threatened. Held, that whether the employment of the officers was necessary was a question for the j my, and that a direction of a verdict for the relators was error.
Appeal from order for a peremptory mandamus, entered upon a verdict directed by. the court
Proceeding for a mandamus to compel the board of supervisors to audit and allow a claim presented by relators for money advanced to the sheriff to pay certain officers employed by the sheriff to protect the property of relators during a strike of their workmen. The moneys were advanced in pursuance of a promise by the sheriff that relators should be reimbursed by the county, and he assigned to them his bill against the county for reimbursement An alternative mandamus was procured and a trial had thereon, at which the court directed a verdict for relators.
James W. Covert, for app’lt; Sanford H. Steele, for resp’ts.
—There was an issue of fact presented by the evidence which should have gone to the jury. The petition stated that the sheriff of Queens county employed deputies and officers for the defense of the property of the Laurel Hill Chemical Works. That the Laurel Hill Works gave notice to the sheriff that certain evil disposed persons had collected in the vicinity of the works and threatened to destroy or injure the same. That the deputies and officers were necessarily paid for this service. That the money paid was advanced to the sheriff by the relator Nichols and that the sheriff has assigned the claim to the relator. The return denies any unlawful assembly of persons with an intent or with any threats of destruction or injury to the Laurel Hill Chemical Works. The return expressly denies that the said special deputies and officers were needed to protect the works from destruction or damages and that the expenditure therefore was necessarily made.
The proof upon the trial tended to show that there had been what is termed a strike on the part of the employes and that a
p. 864considerable body of the retiring workmen and others had collected around the works. There was proof tending to show acts of violence; one to a boy who was bringing a dinner pail to his father who was working for the company after the strike. Another act of violence was the fact that a driver on one of the trucks of the relator’s company was stopped. These acts were seven or eight hundred feet from the works. There was no proof which established at all hazards that the works were threatened. The acts of violence may have been solely addressed to the prevention of other workmen supplying the place of the retiring workmen and with no intention of injury to property. It was for the jury to say whether the employment of the officers was necessary. The sheriff was bound to protect the property of the company by “legal means.” Chapter 428, Laws of 1855, § 3.
The sheriff had the right to call for aid from the military, chapter 275, Laws of 1878, amending revised statute. If this force had been called out the pay of the force would have been a county charge. Whether or not the sheriff could make the county liable by using money advanced by the threatened company to hire men cannot be presented until it is found whether the advance was necessary to protect the property of the company.
The order directing verdict and the judgment thereon should be reversed and a new trial granted, costs to abide event
Pratt, J., concurs; Dykman, J., not sitting.