Newberry v. Mayor of New York — 31 N.Y. Super. Ct. 369

Majority

p. 369

SQUIRES L. NEWBERRY, Plaintiff, v. THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, Defendants.

Headnote

The purpose of the act of the legislature (chap. 428, Laws of 1855), requiring a party, where property has been destroyed by a mob, to give notice to the mayor of the city, or sheriff of the county, of any previous threats of such mob so to destroy property, is to enable such sheriff or mayor, or both, to take the proper and necessary precautions for the protection of property so threatened.

Such notice, by the party injured, is unnecessary where it appears that the mayor and sheriff had notice from other sources of the existence of an organized mob, and its threats and attempts to destroy property generally, in a city.

Before Barbour, C.J., Fithian and Freedman, JJ.

[Decided June 11, 1869.]

This case was tried before Mr. Justice McCunn and a jury.

The action was to recover for property destroyed by a mob on the 14th of July, 1863. Plaintiff was a jeweller,,and had a place of business at No. 299 Tenth avenue, New York, in which were his tools and implements of trade and a small stock of goods. Between eight and nine o’clock in the morning of the 14th of July, 1863, plaintiff was informed by a neighbor that his premises were to be attacked by the mob that morning at nine o’clock; that thereupon, being in fear of bodily harm, he and his family left the premises quickly, being followed, he said, by persons he supposed to be the mob. It further appeared that about one o’clock of that day plaintiff’s premises were attacked and sacked, and his property totally destroyed, to the amount of about one thousand nine hundred dollars, by a mob of from one hundred and fifty to two hundred persons, acting in concert. The plaintiff did not notify the Mayor of the city or Sheriff of the county of the intent of the mob to attack his premises, pursuant to the provisions of section 3 of chapter 428 of the Laws of 1855, under the provisions of which statute this action was brought. At

p. 370

the close of plaintiff’s proof the justice dismissed the complaint, on the ground of the failure of the plaintiff to give such notice. Plaintiff’s counsel excepted, and the exceptions were ordered to be heard, in the first instance, at the General Term.

Mr. David McAdam for plaintiff.

The object of the notice to the mayor and sheriff is to enable them to take the necessary means to protect the property threatened with violence. The threats here were immediately followed by the threatened acts of the rioters; there was no time for preparation or notice; the plaintiff fled for his life; the evidence shows the dangerous combination against him and his property$ and the final destruction of his property, showing the exercise of great force and an utter disregard of consequences. The dangerous character of the mob clearly appears. There was no time for notice—no need of notice; the destruction commenced before the plaintiff found security for his life, and ¡wus finished long before any notice could possibly find the Mayor or Sheriff, who, at the time, were as much unable to protect the plaintiff’s property as he was himself. The statute must receive a reason, able and liberal construction; and it is only where a party has .time to notify the sheriff, and neglects to do so, that the omission is fatal' (Schiellien v. Board of Supervisors of Kings Co., 43 Barb. S. C. R., 490; Ely v. Board of Supervisors, 36 New York, 297). The question whether the plaintiff had time to notify the Mayor •and Sheriff, before the alleged injury and destruction were consummated, was a question of fact for the jury to determine, from ' the evidence and the circumstances -surrounding the case, as in .the actions last cited ( 43 Barb., 490 ; 36 N. Y., 297 ). The question of reasonable time is always a question of fact for the jury (Green v. Haines, 1 Hilt., 254; Conger v. Hudson River R.R. Co., 6 Duer, 375 ; Lawrence v. Ocean Ins. Co., 11 Johns., 241 ).

Mr. Richard O’Gorman for defendants.

A party seeking relief afforded by statutory provisions must

p. 371

establish by proof that he has complied strictly with the requirements of the statute. The plaintiff has failed to furnish such proof, and, on the contrary, the evidence adduced shows that he has violated or neglected to obey the requirements of the law, in that he did not use due diligence to prevent the damage which is the subject of his complaint. His flight from his house, leaving it unprotected, evinces an extreme diligence in caring for his person, which induced an equally extreme negligence of his property. He failed -and neglected to notify the Mayor of the city or the Sheriff of the county, after being apprised of the threat to destroy his property by the mob, “ of the facts brought to his knowledge.”

The notice is prescribed by the statute as an imperative prerequisite to the right to recovery; and nothing but a destruction of the property simultaneous with the plaintiff’s knowledge of the threat or attempt, or the duress of superior force rendering it impossible or extremely dangerous to notify the officers named, can excuse an omission of that duty. The evidence shows that neither of these excuses existed; that the time and opportunity of the plaintiff to perform the duty was ample. Therefore, his omission thereof, whether induced by negligence or ignorance of the provisions of the law, must preclude a recovery. The neglect of the plaintiff either to protect himself by his own efforts, or, by notice to the Mayor or Sheriff, to invoke the protection which it was the duty of the authorities charged with the preservation of the public peace to extend to him, has permitted the injury which he has sustained, and therefore, upon the adjudicated principles of law, independently of the special provisions of the statxite, the complaint was properly dismissed (Wilds v. Hudson River R.R. Co., 24 N. Y. Rep., 430 ; Johnson v. Hudson River R.R. Co., 20 N. Y. Rep., 73 ).

By the Court:

In these cases the statute provides that no recovery shall be had for property destroyed or injured by a mob, if it appear that the destruction or injury was occasioned, or in

p. 372

any manner aided, sanctioned, or permitted by the carelessness or negligence of the party seeking to recover. Nor shall any recovery be had unless such party shall have used all reasonable diligence to prevent such damage, and shall have given notice to the mayor of such city, or the sheriff of such county, immediately after being apprised of any threat or attempt to destroy or injure the property by any mob or riot, of the facts brought to his knowledge; and, thereupon, it is made the duty of the officer so notified to use all legal means to protect the property. And if he refuse or neglect to do it, an action may be maintained against the officer, for the value of the property destroyed, by the injured party. ■

It is clear, upon the face of this statute, that its object and purpose in requiring notice of any threat or attempt by a mob to injure property, was for the purpose of protection to the property, to enable the constituted civil or military authorities, or both, to meet and overcome riotous, illegal force by organized legal force, and thus afford protection to persons and property. And in such case if a party, knowing that injury to his property had been threatened by mob violence, omit to give notice of that fact to the civil authorities, who could and would have afforded protection if they had been notified, he shall not recover, because it is his own fault and neglect that the injury was not prevented.

But the object and purpose, or reason for giving such notice, have no application to the circumstances and conditions under which plaintiff’s property was destroyed in this case. This court will and must take judicial notice that on the 14th day of July, 1863, a very considerable portion of the city of New York, including that part where plaintiff’s premises are situated, was under the absolute and uncontrollable domination of an organized, riotous, and rebellious mob ; that in those parts of the city where it held sway, the civil and military authorities were excluded by force, and utterly powerless to offer successful resistance to the riotous proceedings; that for more than a day previous to and after the destruction of plaintiff’s premises, both the Mayor and Sheriff knew of this mob and all its proceedings,, and

p. 373

were exerting every available power and means at their command to subdue it, and that without success, until aided by the strong arm of military power. What good, for any purpose of protection, would or could have resulted from the plaintiff giving notice to the Mayor or Sheriff that this mob had threatened his property \ They both knew already that all the property in that part of the city, as well as human life, was threatened by this mob, and were exerting their utmost power to subdue it. It is clear that the provisions of the statute in regard to notice is not applicable to a case of this kind (Shudlim v. The Board of Supervisors of Kings Co., 43 Barb., 490 ; Ely v. The Board of Supervisors of Niagara Co., 36 N. Y. Rep., 297 ).

The exception of the plaintiff must be sustained, the order dismissing the complaint reversed, and a new trial ordered, with costs to abide the event.