People ex rel. Nichols v. Board of Supervisors — 43 N.Y. St. Rep. 33

Majority

p. 33

The 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,

Filed December 14, 1891.)

Headnote

■County—Protection op property.

In a proceeding for a mandamus to compel the audit of bills for services rendered on the employment of the sheriff to protect private property . from injury by strikers, where no actual violence is shown to have been done or threatened, the county has a right to go to the jury on the question of the necessity of the sheriff’s action in hiring men on the credit of the county. It is not liable merely because the sheriff hires men if the danger did not exist.

Motion for reargument

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 the 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 issued and trial had thereon, at which the court directed a verdict for relators. The judgment entered thereon was reversed by the general term on the ground that the case should have gone to the jury on the question whether the expenditure was necessary.

Sanford H. Steele, for motion; James W. Covert, opposed.

The motion for a reargument should be denied. The fact which the deféndant sought to establish on the trial was that there was no such condition of affairs in respect to the relators’ factory as to justify the sheriff hiring men to protect it. There had been a strike and there was an assemblage of angry men collected, but there was no actual violence to property, and no such evidence as to indicate an intent on the part of the workmen to do violence to the factory or other property. The court held that the relators had the right to notify the sheriff that their property was in danger, and the sheriff had no choice. He must get men without regard to actual danger; that the county was liable even if there was no danger. “ It makes no difference if you

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prove that this man was mistaken; ” “ it is the sheriff who is to* decide.”

The county we think had a right to go to a jury upon the question of the necessity of the sheriff’s action in hiring men on the credit of the county. The county is not liable merely because-the sheriff hires the men if the danger did not exist. The motion for a new trial on the minutes brings up the question. The court,, before the close of the trial, indicated in its decision that there was no issue to try, and at the close of the case ordered a verdict The defendant excepted to this ruling, and subsequently made a motion for a new trial on the minutes and the exception.

We think a new trial should be granted and the motion for a. reargument should be denied, with ten dollars costs.

Pratt, J., concurs; Dykman, J., not sitting.