
    Arthur M. Eastman, plaintiff and respondent, vs. The Mayor, &c. of the City of New York, defendants and appellants.
    1. A very serious question might arise as to how far the statute of 1855 makin,cities, &e. liable for the value of property destroyed by a mob or riot, (Laws of 1855, ch. 428,) was repealed, as to the cities of New York and Brooklyn, and the whole metropolitan police district, by the passage of the metropolitan police act, of 1857, (Laws of 1857, ch. 669,). if there were any means of escape from the binding authority of the decision in Darlington v. The Mayor, 4c. of New TorJc, (31 N. F. Bep. 164.) But the case of Baldwin et al. v. The Mayor, 4c. of New Fork, decided by the Court of Appeals, April term 1866, has not so disturbed the foundation of the decision in the former case, as to the constitutionality of the law of 1855, as to render it still an open question. Ber Robertson, Ch. J.
    2. Under the statute of 1855 it is not a question of diligence on the part of the city authorities. If the party damnified has not been guilty of any want of diligence on his part it is imperative. No failure of a mere bailee of goods to notify the mayor or sheriff can be imputed against the owner of the goods as an omission.
    3. The exclusion by the act of 1855 (§ 3,) of a party damnified by a riot from recovering any thing unless he “ shall have used all reasonable diligence to prevent such damage,” does not confine the requisite diligence to exertions during a riot; but the words “ shall have used ” refer to a time anterior to the injury done by the mob, and to previous precautions and care used to prevent destruction by a mob.
    4. Those who seek indemnity against the action of a mob, are at least bound to keep property likely to be an object of attack protected in the same manner in which a man of ordinary prudence would keep it, if he wished to protect it against a sudden attack of rioters.
    6. Under what circumstances a referee’s report, in an action against a municipal corporation to recover the value of property destroyed by a mob, will be set aside for excessiveness of damages.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard November 9, 1867;
    decided February —, 1868.
    This was an action brought against the corporation of the city of New York, by the plaintiff, for damages by reason of injury done to or the destruction of 157 boxes or cases, with their contents, consisting of 3143 carbines, claimed by him to have been injured or destroyed in July, 1863, in consequence of a riot in that city. Such cases and carbines were alleged to have been at the time of such supposed injury or destruction, taken from the fifth story of a building, at the corner of an avenue (Second) and a street (Twenty-second) in such city, used by a gunsmith (Marston) as a work shop or factory, where they had been previously stored. Such carbines had been originally»repaired, altered and packed in such cases in that shop, then removed to a factory opposite (Opdyke’s) and were claimed to have been brought back and piled against the wall, endwise, fourteen or fifteen feet high, nearly the height of the room. Five hundred of them, recently repaired by Marston and sold to the state of New York, lay near the hatchway of such , fifth floor. From fifty to over a hundred workmen ordinarily worked in such shop. The lower part of the building was. occupied by a steam engine and apparatus. The riot commenced on the 13th July, 1863, and was renewed for several days after. Two attacks were made on the 14th of July, 1863, by rioters on the place where such guns were stored. The first commenced between eleven o’clock in the morning and ’noon, and the second between two and three o’clock in the afternoon. A police force of about two hundred men arrived about ten minutes after the first entrance of the rioters, and found them taking arms out of the. building.- All of those arms were retaken by the former, after a conflict in the street. They also obtained all the loose arms on the second and third floors, amounting to seventy-five pieces. On the second occasion, soon after the rioters entered the building, about the same number of policemen, accompanied by a military force arrived, and with difficulty fought their way to the upper part of the building. There they found two or three boxes of carbines, which, after carrying them -down to the sidewalk; they broke open. They also took seventy-five muskets from the rioters outside, making, with those obtained on their first visit, two hundred pieces. They also took some guns from the rioters inside of the building. All the guns taken from the rioters on both occasions, besides those found in the second and third stories by the police on the first occasion, and those found by them at the second in the fifth story, were carried by the police to their head-quarters. Guns were thrown from the windows of the fifth story of the building on the sidewalks of both the street and avenue, by the rioters, on both occasions^ Rut not as many the second time-as the first. They had been throwing out such guns on the second occasion some ten or fifteen minutes, when the police arrived. Most of those thrown 'out were carried away, apparently unbroken. A larger number than those so thrown out were brought down stairs by gangs of from ten to fifteen' rioters, the stair case being very narrow. Those so bringing them down were assailed by a large number outside, to get possession of' the fire arms, and after a struggle they. were generally deprived of them. Such guns were thrown from the windows by the rioters on both occasions, apparently inconsequence of the attack of the police upon them in the building, and the blocking up any exit, from such building, so that the rioters could not get down stairs. When they did come down, with arms in their hands, they Were struck by the policemen with their clubs. They then dropped their weapons and fled, and the crowd outside picked up such guns and escaped with them. The five hundred guns sold to the state, put in order and packed in boxes a day or two before the riot, lay in a very convenient place to be carried off by the rioters.
    Nine thousand guns-, including those in question, (only five thousand of which had not been employed in actual service,) were bought by the plaintiff in 1861 (August) and 1862, from the United States government, and received by him two or three months afterwards. . He paid three dol- ' lars for some, a half dollar more for others, but nothing for the cases. Eight thousand of them were taken to the factory in question, eighteen months or two years before the riot. Improvements having been made, and -all necessary repairs done upon them, they were repacked in cases alleged to contain about twenty each, and were then moved to the factory opposite, in'"December, 1862. Some of the cases were brought back to the first factory shortly after, because there was no room for them in the second. Such improvements consisted principally of rifling the barrels, and cost one dollar a piece for one hundred and sixty-nine of them and thirty cents more for every one of the residue altered. Sixty guns, including two cases, were found immediately after the riot buried in charcoal,’some of which were broken. They were carried to the police head-quarters, but somewhat injured, by their transportation. Fifty or sixty such guns, out of two or three hundred brought to the same place during the riot, were alone in good condition. The barrels of the rest were full of filth. Some had broken stocks and the barrels of others were bent in the middle. Two days afterwards others were brought in, increasing the total to upwards of seven hundred, in a similar condition and with bent bayonets. About a week after such riot, one hundred and fifteen of such guns, known as Hall’s and seven hundred and nine of them, known as Jenk’s carbines, were at such police head-quarters, where they were packed in cases brough from the factory in question. They were examined by a gunsmith (Jephson) and those in order put by him in separate cases from those- out of order. Over sixty had been repaired by replacing the injured or lost parts of one with corresponding sound parts from others. So that four hundred and thirty-three of them were in good working order, two hundred and sixty-four were rusty, eighty-eight new, thirty-two broken and fourteen had broken bayonets. The cost of putting in order those that were rusty would have been $1.25 for each, and of repairing some of such broken ones $1.50, and others a quarter of a dollar more, each.
    The complaint alleged principally that the plaintiff owned the carbines in question with their' cases. That they were destroyed in consequence of the riot in question, without any negligence on the plaintiff’s part, or his previous knowledge of any intention to destroy them. The answer took issue upon the facts stated in the complaint. The issues in the action were tried before a referee, who gave judgment in favor of the plaintiff for $52,911.60. ie referee found in his report as facts: c. The occurrence of the riot.
    . ¿u. A destruction of large amounts of property in the neighborhood of the building in question, by the rioters.
    3d. The storing of one hundred and fifty-seven cases of carbines amounting to three thousand one hundred and forty-three in number, belonging to the plaintiff, in the fifth story of the building in question.
    4th. A notice by the occupant of the factory (Marston) to the city authorities of the' riot, on the 13th of July, 1863.
    5th. The entry of such factory by rioters on the 14th of July, 1863; their smashing the cases containing such carbines, throwing large numbers of the latter from the windows so as to destroy the value by the fall, injuring and “ so far as their value was concerned” destroying two thousand six hundred and forty of them, and one hundred and twenty one cases, and greatly injuring and damaging the residue except forty-nine.
    6th. The expulsion of the rioters from the building and the rescue of the residue of such carbines, most of them damaged, and thirty of their cases, by the police. The transportation by them of all the guns in the hands of the mob and others (including those taken down stairs and not thrown from the windows by the rioters,) with some left in the upper part of such building, to their head-quarters, where others, of such and other guns taken in a damaged condition from the rioters, were subsequently brought.
    7th. The purchase of such guns by the plaintiff from the United States, his improvement and ownership of them, and a good demand for them in July, 1863.
    8th. A presentation of a claim for adjustment by the plaintiff on the 1st of October, 1863, to the city comptroller, and his neglect to pay the same.
    9th. The absence of any negligence on the part of the plaintiff, “ which could have contributed to the destruction of such guns,” and his ignorance of any intention to destroy them.
    ■ 10th. The value of such carbines at $15, and of the. cases containing them $2.50 each, at the time of the riot.
    11th. The injury and “so far as their value was concerned,” the destruction of one hundred and twenty-one cases, and two thousand six hundred and twenty carbines in them, and the great injury and diminution in value of the- remainder of such guns in consequence of such riot. The damage to the plaintiff by such destruction and injury of $42,632.50, amounting with interest thereon to the date of such report ($10,279.15) to $52,911.65. For which sum the referee held as a conclusion of law, from the foregoing facts found by him, that the plaintiff was entitled to judgment against the defendants. From the judgment entered upon the report the defendants appealed and filed exceptions.
    Evidence was given on the trial, of the time of day of the first entry of the rioters into the building in question, the duration of their stay before their expulsion, their numbers and conduct while inside, as well as that of those who remained outside, the quantity of guns thrown from the windows, and the. effect of "their fall upon them, the ultimate fate of them as well as of those brought down stairs, the concealment of some in the building afterwards, the transportation of some discovered therein as well as those taken from the rioters to the police head-quarters,, and the general condition of those carried there. Also as to the number of guns belonging to the plaintiff and stored in such building prior to the riot, the value of those claimed to have been injured or destroyed, and the extent of the injury. Uncontradicted evidence proved the various facts herein before stated.
    The only witness who testified on the trial as tp the time ■ of day of either attack by the rioters upon the factory in question, besides the inspector of police, (Dilks,) who commanded the force who drove them out; the officer, (Burden,) who watched their movements and telegraphed from a police station in sight of them for such force, and an officer, (Clinchy,) who saw the second attack, was Bergman, who fixed the time as “about noon.” Another witness, Schmidt, at some time letioeen noon and 3 o'clock of the day in question, saw persons throwing guns out of the windows, and others bringing them down stairs, but did not state the time of their entry. Bergman was also the only witness, besides such police officers, who fixed the stay of the rioters when he saw them in the building, which he made half an hour before the police came, differing therein from the statement of' Burden, unless it applied to the second assault.
    As to the number of persons present at such attacks, and of those who were actively engaged in the riot, and of those in the building employed in injuring or carrying away guns, the evidence varied; Six witnesses, only, testified on that subject. (Boppoeh, Clinchy, Bilks, S. Marsten, Schanck and Bergman.) Hoppoch saw two or three hundred (mostly boys) go to break open Marston’s factory, and also guns thrown out, but took no note of the time of the last act, because he was so excited, prpfcecting his own affairs, that he could not tell whether it was Monday afternoon or Tuesday morning. He estimated the crowd, including men, women and officers, as being at some time about one thousand. Clinchy, on the second attack, saw a great crowd, (as he termed it',) go up to the building, and get on the fifth floor, of- whom ten or fifteen stood in the entrance. He fixed the numbers of the crowd at that time in the street at about one thousand. S. Marsten thought there were, perhaps, two or three or four hundred engaged' in the riot; there might have been a thousand; but he was unable to fix the day of the week, his memory being bad, and did not state the time of day. Schanck stated the crowd to be about a thousand, at some time, which he did not fix when guns were thrown from the windows. Bergman stated the crowd of persons present, at both attacks, to be about a thousand; the rioters were a great many more than the policemen. Bilks testified that on the second occasion ten thousand persons were collected, but many of them simply looking on. As to the time the rioters were in the building, a police officer, (Burden,) who watched their operations, and telegraphed for the police force, when necessary, testified that the first time they were not in ten minutes when such force arrived. The other officer (Clinchy) testified that the second time they were in from twenty-five minutes to half an hour. Two witnesses (Hoppoch and Bergman) attributed the throwing of guns out of the windows, which they saw, to the attack by the police on the rioters. Three witnesses testified to seeing guns thrown out of the windows on Twenty-second street, on Second avenue, and into the yard of an adjoining building.
    Only five witnesses, (Burden, Schmidt, Bergman, S. Marsten and Bose,) examined, saw the guns thrown from the window. The first (Burden) thought there were fifteen or twenty on the first occasion; not more ; and not as many as fifty. The second (Schmidt) saw about a couple of dozen thrown out on Twenty-second street. The third (Bergman) saw about fifty thrown out on the Second avenue. The fourth (S. Marsten) saw several hundred thrown on the street. The last (Bose) saw a great many lying about on the sidewalk of the street, which had been thrown out, but he could not state how many. Another witness (Boppoch) saw a great many stocks and barrels on the sidewalk in the street, which had been broken by the fall. Several witnesses (Boppoch, Bohn, GUbbs, S. Marsten) gave their opinions, as experts, that the fall of a gun, even less than fifty feet to a pavement, would render it useless and destroy its pecuniary value. One witness (Bohn) testified that the guns which he saw thrown out were cracked; some were bent, and some had the wood broken.
    
      
      B. O’ Q-orman, for the appellants.
    
      J. B. Parsons, for the respondent.
   Robertson, Ch. J.

If there were any means’ of escape from the binding authority of the decision in the court of highest resort in this state in the case of Darlington v. The Mayor, &c. of New York, (31 N. Y. Rep. 164,) a very serious question would arise, to wit, how far the statute of 1855, under which the plaintiff claims, (N. Y. Sess. Laws of 1855, ch. 428,) was repealed, as to the cities of New York and Brooklyn and the whole metropolitan district, by the passage of the metropolitan police act of 1857. (New York Sess. Laws of 1857, ch. 569.) So gross an injustice could hardly he presumed to have! been intended to be perpetrated as to deprive a municipal body, as such, of all power of concerted action in having means on hand to prevent a riot aid yet make it responsible for its consequences, however unexpectedly it occurred. Such an appropriation of property could hardly be anything but confiscation. I do not, however, perceive that the case of Baldwin and another v. The Mayor, &c. of New York,) lately decided in the Court of Appeals, (MS. April term, 1866,) or the opinion delivered in it, however, sound and just, has so disturbed the foundation of- the decision in the first mentioned case, as to the constitutionality of the law of 1855, as to render it still an open question. The right of obtaining a judgment under that statute for damages, is entirely distinct from any question as to the mode of satisfying it. This court would be bound to adhere to its own decisions in-Davidson v. The Mayor, &c. of New York, and Darlington v. the Same, (2 Rob. 230 et seq.,) if such statute he not imperative that such judgment is to be satisfied by an execution in the ordinary way against property held by the city corporation, hut contemplates some other mode of satisfying it. But if the statute be thus imperative, and if all prop: erty -held by the defendants as a corporation is subject to the call of the state for any purpose, whenever and however it chooses to claim or apply it, and such judgment and an execution thereon be the mode of reaching it, as seems to be laid down in the case in the Court of Appeals already cited, (Darlington v. Mayor, &c. ubi sup.) we are bound by that decision, and not at liberty to doubt its correctness.

There is no room under the statute of 1855 for any question of diligence on the part of the city authorities. It is imperative, if the party damnified 'has not been guilty of any want of diligence on his part. Eor could any failure of a bailee, such as Marsten, to notify the mayor or sheriff be imputed as an omission against the plaintiff. Such notification is a mere question of good faith, and there is no evidence before us that he, the plaintiff, knew of any threats of, or expected a riot. Some ‘question might, perhaps, be ■raised on the exclusion by the statute, (p. 801, § 3,) of a party damnified by a riot from recovering any thing unless he “shall have used all reasonable diligence to prevent such damage.” What is meant by this, is not, perhaps, very definite. It evidently does not confine the requisite diligence to exertions during a riot; otherwise, it would have said “ shall use.” But “ shall have used ” clearly refers to the time anterior to some event, (which, of course, is the injury complained of as a consequence of the rio.t,) and was meant, undoubtedly, to refer to previous precautions and care used to prevent destruction by a mob. Those who seek indemnity against the action of a mob, are at least bound to keep property-likely to be the objects of attack, in the position a man of ordinary prudence would keep it if he wished to guard against a mob. It might be doubted, in this case, whether fire arms in a city, during a highly excitable state of the public mind and a civil war, were protected with reasonable diligence by being left in the work shop of a gunsmith, without extra fastenings or barriers. ■ The referee, however, did not pass upon that question, as one of fact, and questions of law involved in it may be postponed, until it is seen whether other facts in the case may not render a decision upon it unnecessary.

¡Nor will it be necessary, in this case, as it stands before us, to consider whether the mere theft of property during a riot sufficiently constitutes an injury or destruction within the meaning of the'statute. The occasion of its passage, as well as its language, would seem to imply, rather injury from the passions of a mob, than abstraction by a band of thieves. The report of the referee in this case, has rendered any question as to the injury superfluous, as it has found that the guns for whose entire value he allows, were rendered worthless in consequence of the riot, and thereby destroyed, and the guns for injury to which he allows' compensation, were damaged to the sum allowed. This leaves the sole question upon it one of fact, whether so many guns were rendered worthless by the rioters, and so many injured to the extent of the damage allowed.

' ¡No spectators .of the conduct of the mob on the occasion in question, examined as witnesses on the trial, saw destroyed, injured or carried away, any thing like the number of guns reported by the referee. The existence of fragments of any thing like as many then destroyed or injured, was not established. And above all, no evidence was given of the quantity of remains of broken boxes which were not carried away, so as to obtain an approximation to their numbers, although it was proved enough to contain the rescued guns and parts bf guns, were found unbroken. The only witnesses who spoke of destruction of the boxes, were the plaintiff, (who, although he did not see them broken, said they were “smashed,”) and Marsten, who spoke of them as being broken up; but neither of them specified any number, and, although the plaintiff so saw them the day after the riot, forty-four cases (brought from the factory, wherein to pack the rescued guns) were found there whole a week after the riot. ¡No mention was made by any witness of unbroken and unopened cases of arms being hurled from the fifth story into the street, which could easily have been done by the rioters, and would have been the most effectual and rapid way of demolishing the boxes and getting at the arms to destroy them, if that were the object. Although, so far as the purpose of the rioters was concerned, it seems to have been rather to procure arms for purposes of plunder, or arming themselves, than merely to destroy a particular kind of property, or injure obnoxious individuals, which generally are the objects of a riot.

The referee’s report was evidently based upon an assumed presence of the number of guns specified by him in the factory in question, and therefore that the .disposition manifested by the rioters to destroy them, their destruction of a considerable number, and the opportunity to destroy all, and the final disappearance from such buildings of all the guns, would together establish their actual destruction by the rioters. Eo doubt Marsten originally packed 8123 carbines belonging to the plaintiff in 157 cases, and sent them in the year 1862 to the opposite factory, where they were deposited; but how long they remained there does not appear. The plaintiff would not state that he ever saw all of such guns in the factory in question, after the removal back. Even Mr. Taylor, who took samples of the guns from some of the cases, could not say that he knew the number of all there, Marsten only knew they were there, by seeing the eases in his factory. Eo one testified that he knew that the contents of the cases remained the same, when they were moved back, as when they went to the Opdyke factory.- Marsten never saw any of the guns after they were first moved, until he repaired the five hundred sold to the state. They remained without any examination for eighteen months before the riot, except to get the samples. The evidence, therefore, was not such as to place it beyond all doubt, that the cases and their contents remained until July, 1863, at the time of the riot, as they were when they were moved to the Opdyke factory. There was ample opportunity, and, of course, the possibility of a removal of some of the guns before the riot, and even before the removal from the Opclyke factory, and whether, with the knowledge of either Marsten or the plaintiff was wholly immaterial.

There was also not enough evidence on the trial, that so many were destroyed or carried off. All that was done by the rioters in the presence of all the witnesses did not establish that 3000 guns were taken out' of the factory in. question by the rioters. Burden, although on the watch all the time, did not see fifty thrown out of the windows on the first attack. ■ Schmidt only saw two dozen, although he saw more carried down stairs, whose possession was struggled for by the mob. Bergman saw only fifty thrown into the avenue, and he was looking at them for half an hour or an hour. He also saw some carried away; but how many he did not state. The father of Mr. Marsten, who appears to have been there all the time, could only say that he saw several hundred in all thrown out. None of the witnesses (if they stated any time at all) were very precise as to the time when the guns, which they saw, were being thrown out. But even if the witnesses saw different arms thrown out, the whole would fall far short of even the number brought to the police head-quarters. There was, undoubtedly, evidence that some of those thrown out were carried away, although there was stronger evidence, that on the first occasion more were brought down the stair case, although very narrow, and carried away, than were thrown out. There was no evidence that those so. brought down and carried away were injured at all; and to that extent, at least, the report of the referee is unsustained.

The improbability, also, of the destruction of so many guns by the means proved to have been used, in the presence of so many witnesses, considering the time, employed and numbers engaged, was very great. Few guns were thrown out of the windows until the police came, and then they were treated so, because the rioters could not carry them away by the stairs. The police force appear to have taken fifteen or twenty minutes, or perhaps half an hour, on each occasion, to expel the rioters, part of whose force was diverted to resisting the entrance of the former. Only ten or fifteen men seem to have been engaged at a time in carrying down guns or throwing them out. It would require fifty to be thrown or carried out every minute in order to exhaust the whole number in an hour. In such case, hundreds would have been seen at a time piled upon or scattered about the street. The fall of such an iron shower would hardly have been described in the tame manner it was by the witnesses. The guns were, as testified, thrown out singly and not by cases, and no witness gave the impression of such a rapid rain of, or escape with, them, as was necessary to get out three thousand guns in an hour, or less. The evidence was scarcely sufficient to warrant a finding that (if any) many over a thousand had beeir taken out in the presence of the witnesses. What took place in their absence was, of course, mere matter of conjecture. The evidence,' also, tended to show that most of those thrown or carried out were rescued and brought to police head-quarters. Making allowance for the time necessary to open the boxes and bring the arms down stairs or throw them but, and the struggles for their possession before the police first arrived, but few could have been carried away. Captain (the police officer) Dilks testified that, after a conflict, they took from the mob in the street all the arms they had, and in both attacks -captured two hundred pieces. More than six hundred more were brought to the police head-quarters, where all the broken ones were repaired that were1 capable of it. The referee, even found that all the guns in the hands of the mob, or others, including those taken down stairs and others in the building, as well as others taken away by the rioters, were destroyed. But there is no justification for' such finding, or that as many were destroyed or injured by the rioters as he has found. The damages found by him were, therefore, excessive.

But this is not all. The plaintiff testified that some (40 or 50) of the arms bought by him of the United States government were badly damaged, and also that some of them had been previously used, in actual service, leaving about five thousand new ones out of the whole nine thousand. Any of those so used, which were defaced, were scraped and oiled over by cabinet makers. He paid nothing for the cases. The highest price paid by him for any one of such guns was $3.50. The highest price paid for improvements on any of them was $1.50. He only brought up the price to $8 a piece by bringing in the cost of trips by him to Washington respecting the cost of purchase and other unknown expenses. After being stored eighteen months, five hundred of them sold to the state of New York were repaired, there being no other carbines procurable, and a confederate army threatening an attack on the north. Out of over eight hundred of such' guns rescued from the rioters, nearly one-ninth were used, much over one-half in good working order, a little short of one-third rusty, and but thirty-two broken. After deducting from the whole amount allowed by the referee ($42,632.50) the value of those reported by him to be rendered entirely worthless, at the sum fixed by him ($15) and of the cases (121) at his valuation ($2.50) there remains about $3000 to be allowed for injury to the residue.

The number of guns left, after deducting those actually destroyed, (2620) would be five hundred and three, and the injurywto each of them by the rioters about $6. This was not sustained by any evidence. But two hundred and ninety-six of those saved were found to need any repairs, of which but thirty-two were broken. The rust was more likely to have been the result of remaining unopened than of being carried out by the rioters. The cost of cleaning and repairing the rusty or broken ones was proved by competent, uncontradicted evidence not to exceed $1.75, which would not amount to one-half of the sum allowed. This, of itself, would also render the damages excessive.

Two dollars and a half was allowed by the referee in this case for each box or case, although the plaintiff had obtained them gratuitously, and $15 for guns for which the latter had only paid $3. The report, therefore, if allowed to stand, would operate as a judicial sale without delivery to the defendants of all the guns owned by the plaintiff, on the hare possibility of their having been injured, at the highest imaginable market price, although the defendants were not in fault for the.occurrence of the riot, having been deprived by the state government' of their police, and by the federal government of their most efficient military force to defend another state. The report niust be set aside for excessiveness of damages, the judgment thereon reversed, the order of reference discharged and a new trial had, with costs to abide the event.  