
    Charles D. Marshall, as Trustee of the Trusts Created under a Certain Deed Dated January 1, 1856, Executed by Heman B. Potter (How Deceased) to George R. Babcock and Others (All Deceased), Appellant, v. The City of Buffalo, Respondent.
    
      jMob — liability of a city or county, not notified of any threat or attempt to destroy property — what facts must be shown to justify a recovery in favor of the owner of the property destroyed.
    
    Where the property of au individual is destroyed hy a mob, without any previous threat or attempt to injure it, and without any warning or notice to the owner thereof until after the damage is done, the city or county in which the property is situated is liable to the owner under section 21 of the General Municipal Law (Laws of 1892, chap. 685), providing : “ A city or county shall be liable to a person whose property is destroyed or injured therein by a mob or riot for the damages sustained thereby, if the consent or negligence of such person did not contribute to such destruction or injury, and such person shall have used all reasonable diligence to prevent such damage, shall have notified the mayor of the city, or sheriff of the county, of a threat or attempt to destroy or injure his property by a mob or riot, immediately upon acquiring such knowledge.” This liability exists whether or not the authorities had notice or could have prevented the damage.
    In an action brought under that section, it appeared that the property destroyed consisted of several unoccupied buildings, located in a residence and business part of the defendant city. There was evidence that one morning a crowd of men, women, boys and girls appeared upon the premises with shovels, axes and other tools and commenced to demolish the buildings and take the material away in wagons; that from 100 to 200 people wore engaged in the work of destruction, which continued for three days until only the foundation walls were left.
    
      There was no evidence as to the preliminary movements of the crowd, or of any previous threat or warning or notice to the plaintiff, and the jury would have been j ustified in finding that he was free from contributory negligence.
    
      Held, that it was error to dismiss the plaintiff’s complaint;
    That the evidence was sufficient to warrant the jury infinding that the buildings were unlawfully and with force and violence demolished and removed by a riotous and disorderly mob, or in a riotous or disorderly manner by a mob, in the execution of a common purpose and in defiance of law and order;
    That the plaintiff was not required to prove that the trespassers committed the crime of riot or any other offense, but was merely required to show, by a preponderance of evidence, facts and circumstances from which the jury might infer that the property was destroyed by a mob or riot within the spirit, true intent and meaning of the statute.
    Adams, P. J., and Williams, J., dissented.
    Appeal by the plaintiff, Charles D. Marshall, as trustee, etc., from s, judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of - Erie on the 10th day of -October, 1898, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Erie Trial Term,
    
      Adolph Rebadow, for the appellant.
    
      William S. Jackson, for the respondent.
   . Laughlin, J.:

• This action was brought to recover the value of property claimed to have been destroyed by a mob or riot. The plaintiff, as trustee, ■was the owner of premises situate on IToyt and Lyman streets in the city of Buffalo and of the buildings thereon. The buildings consisted of a slaughter house eighty-four feet in length and thirty-two ■feet in width, an icehouse sixty-five feet in length and thirty-two feet in width, and a wagon shed and stable eighty feet in length and sixty feet in width. Each building was sixteen feet high and was constructed of timbers, joists, studding, rafters, boards and shingles, forming a substantial structure. At the time of their destruction the buildings were unoccupied and had not been occupied for several years. The doors and windows and some planks from the sides of the buildings had been removed by the action of the wind and weather and by trespassers. The buildings were otherwise in good condition and were worth between $3,000 and $4,000. The material of which they were constructed was first class, and was worth $2,500 for the purpose of removal to be utilized in the reconstruction of other buildings. On Friday morning the 30th day of-July, 1897, a crowd of men, women, boys and girls, mostly Polish people, was seen upon the premises. Some were upon the ground and others on the buildings with shovels, axes, pickaxes, saws and crowbars of all shapes and descriptions chopping, cutting, tearing and slashing the buildings down and taking the material away in wagons drawn by horses. They continued in this manner all that day and the next, working until late each evening, if not all night. Monday morning some of the material still remained on the premises and like operations were resumed, and before noon every vestige of wood had disappeared and nothing remained of these buildings but the bare foundation walls of stone. At times there were from 100 to 150 people there engaged in demolishing these buildings and in removing the material, and at one time the number exceeded 200, The eye witnesses say that the work was conducted with great activity and haste. It was in a residence district and business portion of the city. There was no evidence of any previous threat or of any warning or notice to the plaintiff until after the damage had all been done, and the jury would have been justified in finding that he was free from contributory negligence. The evidence failed to disclose whence these people came or whither they went, or as to where they took the material, except the general statement of one witness that they took it home, and it is evident that this was merely his inference.

The people who destroyed and removed these buildings were trespassers, and appai’ently committed the crimes of larceny and malicious mischief. (Penal Code, §§ 528, 537, 654.)

The statute upon which the liability of the defendant depends is section 21 of chapter 17 of the General Laws, known as “ The General Municipal Law” (Laws of 1892, chap. 685), which provides as follows : “ A city or county shall be liable to a person whose property is destroyed or injured therein by a mob or riot, for the damages sustained thereby, if the consent or negligence of such person did not contribute to such destruction or injury, and such person shall have used all reasonable diligence to prevent such damage^ shall have notified the mayor of the city, or sheriff of the county, of a threat or attempt to destroy or injure his property by a mob or riot, immediately upon acquiring such knowledge, and shall bring an action therefor within three months after such damages were sustained. A mayor or sheriff receiving notification of a threat or attempt to destroy cr injure property by a mob or riot shall take all lawful means to protect such property; and if he shall neglect or refuse, the person whose property shall be destroyed or injured may elect to bring his action for damages against such officer instead of the city or county.”

This statute is now substantially the same, so far as the question here presented is concerned, as the original enactment of 1855. (Chap. 428, Laws of 1855.) At that time riot was not a statutory crime, and it may, therefore, be presumed that the Legislature had the common-law definition in mind, but it is significant that the term “mob” was also used in the statute. The case is novel and important. It is inconceivable that such substantial, valuable buildings could have been torn down and removed by trespassers in the manner described, in the heart of a 'great city, without the knowledge of many law-abiding citizens and some members of the police force, who should have interfered. The plaintiff and others are taxed for the maintenance of the police department which has been created for the purpose of preserving peace and order and detecting and preventing crime. A taxpayer might have reasonably expected and demanded a sufficient degree of diligence on the part of the members of the police force to have discovered this assembled multitude and to have prevented the destruction of this property, but that fact alone does not authorize a recovery, nor is it very material, for if the destruction was by a mob or riot, the city is liable regardless of whether the .authorities had notice or could have prevented the damage. The only liability on the part of the municipality in the premises is that imposed by the statute, and, therefore, the sole question presented is whether the plaintiff was entitled to have the case submitted to the jury, to find whether the property was destroyed by a mob or riot within the meaning and intent of the statute. The word “ mob ” is not strictly a legal term, but a vernacular word descriptive of a large and aggravated riot. (15 Am. & Eng. Ency. of Law, 698.) The Century Dictionary defines it as “ A riotous assemblage ; a crowd of persons gathered for mischief or attack; a promiscuous multitude of rioters.” It is defined in the Standard Dictionary as “ A turbulent or lawless crowd ; a disorderly or riotous gathering or assembly; a rabble; throng; as the excesses of the mob.”

Bouvier, in his Law Dictionary, defines it as “ a tumultuous rout or rabble; a crowd excited to some violent or unlawful act. The word in legal use is practically synonymous with riot, but the latter is the more correct term.” It is also described as an unorganized assemblage of many persons intent on unlawful violence. (Abb. Law Diet.)

Section 449 of the Penal Code provides as follow's : “ Whenever-three or more j>ersons, having assembled for any purpose, disturb the public peace by using force or violence to- any other person, or to property, or threaten or attempt to commit such disturbance, or to do an unlawful act by the use of force or violence, accompanied with the power of immediate execution of such threat or attempt, they are guilty of riot.”

A comprehensive and frequently-quoted definition of riot is that given by Hawkins in his “Pleas of the Crown” (Yol. 1, p. 518), viz., “A tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any one who shall oppose them in the execution of some enterprize of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.”

In Blackstone’s Commentaries (Yol. 4, p. 146) a riot is defined as follows : “ A riot is where three or more actually do an unlawful act of violence, either with or without common cause or quarrel as if they beat a man, or hunt and kill game in another’s park, chase, warren or liberty, or do any other unlawful act with force and violence, or even do a lawful act, as removing a nuisance in a violent, and tumultuous manner.”

“A riot,” says Bishop (2 Grim. Law, § 1143), “is such disorderly conduct, in three or more assembled persons actually accomplishing some object as is calculated to terrify others.”

According to Stroud (Judicial Dictionary) and to Bun-ill (Law Dictionary) an unlawful act committed with force and violence by three or more constitutes a riot.

In Commonwealih v. Runnels (10 Mass. 518) Parker, J., observed: “ The phrase in terrorem populi is used by Hawkins as descriptive of the offense denominated a riot; but it is clear that there may be a riot without terrifying any one. Lord Holt has given a distinction, founded in good sense, between those indictments in which the words in terrorem populi are essential and those wherein they may be omitted. He says that in indictments for that species of riots which consist in going about armed, etc., without committing any act, the words aforesaid' are necessary, because the offense consists in terrifying the public; but in those riots in which an unlawful act is committed the words are useless. And upon consulting the precedents we find this distinction accurately observed ; there being no averment of terrbr where an actual violence is charged to .have been riotously committed. * * * To disturb another in the enjoyment of a lawful right is a trespass; and if it is done by numbers unlawfully combined, the same act is a'riot.”

In Solomon v. City of Kingston (24 Hun, 562; affd., 96 N. Y, 651) the court, at General Term, in construing the terms mob and riot, as used in the statute, said': “ The defendant insists, in the first place, that there was no mob or riot, because the crowd assembled at first for a lawful purpose, and that there was no combination. But it is plain that though the original purpose for which the crowd assembled was lawful, yet they might unite in unlawful conduct and thus become rioters. ‘ If, in an assembly of persons met together on any lawful occasion whatsoever, a sudden proposal should be started, * * * or to do any other act of violence, * * * and such motion be agreed to and executed accordingly, the persons concerned cannot but be rioters, because their associating themselves together for such a new purpose is in no way extenuated by their having met at first upon another.’ (Hawk. P. C., bk. 1, chap. 65, § 3; Alb. Law Journal, vol. 22, 403.) Mor was it necessary that there should be a leader. The crow-d breaking into and pillaging the plaintiff’s store were mutually aiding and assisting each other. The crowd broke in, kicked the door open and went in through the door and the windows. Thus there was a combined breaking into the store and a joint act of the crowd.”

In People v. White (55 Barb. 606), a case often cited and quoted with approval, it was held that an assault committed by three or more, with a preconceived intent, constitutes a riot.

It is well settled that such statutes are highly remedial so far as they provide compensation, and penal so far as they impose liability, and should be liberally construed to accomplish the purpose of their enactment. (Davidson v. Mayor, 2 Robt. 240; Sarles v. Mayor, 47 Barb. 447 ; Luke v. City of Brooklyn, 43 id. 54; Schiellein v. Suprs. of Kings Co., 43 Barb. 490; County of Allegheny v. Gibson, 90 Penn. St. 418; Penal Code, § 11.)

The liability does not depend upon the diligence of the public authorities. It is an extension of the ancient English law which made the inhabitants of the respective hundreds liable for burglaries and unlawful destruction of property. The theory of the statute is that it is the duty of municipalities to preserve the peace and protect the property of all persons within their limits, and that imposing such liability would not only tend to incite the citizens and officials to greater vigilance, but that the compulsory payment of losses occasioned by riots would be a proper and just penalty for the negligence of which they have been presumptively guilty. The statute was intended to punish the inhabitants for permitting riots and unlawful assemblages and to incite them to prevent and suppress the same by making it a matter of interest to the taxpayers to. give their moral support to the enforcement of law and order. (Eastman v. Mayor, 5 Robt. 389; Davidson v. Mayor, 2 id. 258, 259; Wolfe v. Supervisors of Richmond, 11 Abb. Pr. 270; Moody v. Supervisors of Niagara County, 46 Barb. 659 ; Luke v. City of Brooklyn, 43 id. 54; Sarles v. Mayor, 47 id. 447; Darlington v. Mayor, 28 How. Pr. 352; 31 N. Y. 164; Ely v. Supervisors of Niagara County, 36 id. 297; County of Allegheny v. Gibson, 90 Penn. St. 418; City of Chicago v. Cement Co., 178 Ill. 372; Spring Valley Coal Co. v. City of Spring Valley, 65 Ill. App. 571.)

In Luke v. City of Brooklyn (supra) tne court remarked that the statute recognizes the duty and obligation of the state to secure and protect the property of the citizen from injury and destruction by lawless and riotous bodies of men, and in the event of its failure or inability to furnish such security and protection, from any causes other than the carelessness and negligence of the owners of such property, it imposes upon the political community — the city or county — when such property shall be injured or destroyed, the further obligation of paying,” etc. (P. 56.)

“ The duty and obligation of the state to provide for the safety of property against the destructive violence of mobs of lawless and riotous men, is too plain for question; and the supplemental obligation imposed upon cities and counties to provide compensation for the injury or destruction of property which they could not or would not prevent, is but another application of the same principle of public duty.” (P. 58.)

It must be borne in mind that this is a civil action and the plaintiff is not required to prove that the trespassers committed the crime of riot or any other offense. He is merely obliged to show, by a preponderance of evidence, facts and circumstances from which the jury may fairly infer that the property was destroyed by a mob or riot within the spirit, true intent and meaning of the statute. (People v. Briggs, 114 N. Y. 56 ; 47 Hun, 266 ; Lewis v. Shull, 67 id. 545 ; Dean v. Raplee, 145 N. Y. 327.)

The case of Duryea v. Mayor (10 Daly, 300; affd., 100 N. Y. 625) is distinguishable on the facts from the case at bar. There three, or four boys, in the daytime, without any tools or implements, began tearing down the stoop of an old, unoccupied, wooden building. They were soon joined by from fifty to seventy-five other boys, ranging in age from eight to seventeen years. It was shown that they had no common purpose and were merely gratifying individual propensities. The work was continued for only an hour, and the boys fled on the arrival of a police officer.

We should not be unduly governed or controlled by the application of technical rules or definitions, as in a criminal prosecution, but rather by a reasonable, fair, liberal and at the same time prudent interpretation of this remedial statute, imposing the obligation on the city on the one hand and creating the right to compensation by the property owner on the other.

In the case at bar the evidence does not show the preliminary movements of the crowd. It shows this promiscuous multitude assembled early jn the morning and collectively engaged in violating the law. It might fairly be inferred and found from the evidence that they were executing a common purpose to unlawfully demolish and remove these buildings, and that there was a preconcerted plan to that effect on the part of many is evidenced by the various tools, appliances and vehicles which they brought with them to enable them to accomplish such purpose.

In determining whether the case should have been submitted to the jury, we must assume that these trespassers knew the law. The jury would have been warranted in finding from the evidence presented and the inferences that might be legitimately drawn therefrom that these buildings were unlawfully and with force and violence demolished and removed by a riotous or disorderly mob, or in a riotous or disorderly manner by a mob, and in the execution of a common purpose and in defiance of law and order. If such are the facts, the damages were caused by a mob or riot and the defendant is liable. While we find no exact precedent, we think that these extraordinary facts established a prima facie case of municij>al liability, requiring submission to the jury, and this conclusion is neither in conflict with the theory of the statute nor the reasoning of the decisions.

The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

McLennan and Spring, JJ., concurred; Adams, P. J., and Williams, J., dissented.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.  