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Harlem in Disorder: A Spatial History of How Racial Violence Changed in 1935

"City Must Pay Loss of Dealer in Riot," New York Times, September 21, 1935, 17.

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In civil court (September 1935-March 1936) On April 23, as the criminal courts resolved the final cases arising from the disorder, Attorney Barney Rosenstein filed claims on behalf of twenty white business owners seeking damages from the city government for losses they suffered as a result of the disorder. The legal basis for those claims was section 71 of the General Municipal Law, dating from 1855, which read, “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” provided that person did not contribute to the damage, had used all reasonable diligence to prevent damage, and brought the action within three months. Many other states had similar laws, at least four of which extended to deaths and injuries as well as property damage, with the result that claims for damages were common in the aftermath of racial disorders. However, historians typically have made only passing mention of damage claims - or no mention at all in the case of those resulting from the disorder in Harlem.

Those municipal liability laws originated in the nineteenth century in response to losses suffered by wealthy property owners. Linked to principles of community responsibility for preventing disorder and paying its costs in England's Riot Act of 1714, the laws were promoted as holding local authorities responsible for maintaining order and making compensation for losses more accessible, as Perry Blatz has shown in the case of Pennsylvania and Adam Malka in the case of Maryland. The Illinois law, upheld by the United States Supreme Court in 1911, was put to use in the aftermath of the three major racial disorders that occurred in the state in the early decades of the twentieth century. In 1908, after the Springfield riot, Black and white residents filed property claims that amounted to at least $120,000, historian Roberta Senechal de la Roche briefly noted, approximately two thirds coming from Black residents. A story that appeared in several newspapers on September 16, 1909, after the last day for filing claims, reported additional suits by relatives of six of those killed seeking an additional $35,000. To pay those claims, the city had to issue special bonds, which saw it paying out $45,000 in "judgements, costs and interest" in August 1913, and paying for the bonds for many years after that. Nine years later, the riot in East St Louis resulted in a flood of claims from Black residents that ultimately forced that city government to also resort to a bond issue, as Malcolm McLaughlin briefly noted in his study. In 1921, five years after the riot, the city issued $454,000 of bonds, which resulted in taxpayers paying the costs of the violence until 1941. The Chicago riot in 1919 produced claims for loss of life as well as property. The claims related to death are mentioned in studies by David Krugler and Elizabeth Dale: Krugler attributes the decision of the city in 1922 to pay $4500 to the family of each person killed in the disorder to the work of Black attorney Augustus Wilson, while Dale identifies several different Black lawyers, including those working with the NAACP's Joint Emergency Committee, who also represented Black defendants in the criminal courts. When the city agreed to that settlement in eighteen cases in December 1922, it had already paid out $20,800 in five cases resolved in court with fifteen more cases unresolved, the Chicago Tribune reported, and thirty-three additional suits for injuries expected to result in payments of $1000 each. Unmentioned by Krugler are the claims for property damage, which came from both white and Black residents. The amount of those claims was not available to the Chicago Tribune reporter in 1922, but earlier stories had reported that only around $100,000 of the more than $1 million of claims filed were for death or injury, with more than 600 suits for property damage making up the rest of that total. As would be the case in 1935, a handful of law firms filed large numbers of claims; ninety-five from one firm, according to one story, more than eighty claims from another firm mentioned in another story.

Despite the awareness of the Chicago riot evident in the aftermath of the disorder in 1935, there was no anticipation in the press of such claims being filed in New York City. When claims were filed, the New York Times reported them as the first suits brought under the law in the city. The New York law had provided the basis for the payment of damages after an earlier disorder marked by violence against Black residents, the Draft Riot in 1865, apparently without litigation. Nearly two thousand men and women filed claims; 416 claims were rejected by a special committee of the New York County Board of Supervisors, who then made their own assessment of the value claimants put on stolen or destroyed items. Although, as historian Joanna Cohen has shown, they reduced the value of the claims by $214,000, the city still paid out $1,122,805. Coincidentally, Mayor La Guardia claimed that a similar sum, $1 million, was at stake in claims against the city in 1935 - although the total of the claims filed had earlier been reported as only $116,000. That figure, and the details of the handful of cases mentioned in the press, revealed more of the scale of the violence of the disorder than the proceedings in the criminal courts, with each claim aggregating the damage done by multiple attacks and thefts.

By July 1935, 106 claims had been filed, with sixty-five more rejected because they came after the three-month window allowed by the statute. While those suits came from just over a third of the 450 businesses estimated as having been damaged by the riot, there was no evidence of any filed by Black business owners. At the time of the disorder the city faced record numbers of claims for damages: the New York Times reported that the Division of Torts disposed of 2,084 cases in 1934, a 93% increase over the preceding year. In 1935, as in 1865, the city government's initial response to damage claims was to have the Corporation Counsel assess if they could be resolved without resort to the courts. Few claims were settled in that way, according to the New York Times story, and the scale of those from the disorder in Harlem apparently led the city to contest them in court. Insurance companies also appeared as parties in this litigation. They had no liability if the events of March 19 and March 20 were a riot, as their policies excluded that situation. However, if the city's lawyers established that a riot had not occurred and the Municipal law thus did not apply, some liability would shift to the insurance companies.

As the city lost repeatedly in court, its lawyers and Mayor La Guardia insisted those decisions would be appealed and each case would be tried on its merits. However, no appeals appeared in the legal record, nor are any trials reported in the press after the third case the city lost, in the Supreme Court. The damages awarded in those cases were significantly less than the sum claimed, as appears to have been typical for actions against the city: $24,450,640 of claims in 1934 resulted in only $544,275 of payments, the New York Times reported. Given the failure of the defenses offered by the Corporation Counsel, the awards to business owners may have provided a basis for the city to settle the remaining claims for amounts that it considered reasonable. The city would avoid similar claims after subsequent outbreaks of racial disorder in Harlem in 1943 and 1964. A provision of the New York State War Emergency Act, passed in 1942, made section 71 inoperative, a status continued in the New York State Defense Emergency Act of 1951 that provided for civil defense administration.
William Feinstein's liquor store looted Around 11.00 PM, David Schmoockler, the manager of William Feinstein’s liquor store saw a crowd of about thirty people gather near Lenox Avenue and West 132nd Street, according to Justice Shalleck's summary of the testimony he gave in the Municipal Court. Located at 452 Lenox Avenue, the store was in the middle of the block between West 132nd St and West 133rd Street. On the other side of West 132nd Street, Herbert Canter, who owned the pharmacy at 419 Lenox Avenue, testified in another Municipal Court trial that he also saw the crowd, which he described as "a "mob" carrying bricks, stones and bottles, as well as canned goods march down the street shouting, "Down with the whites! Let's get what we can," and hurling missiles through the windows, according to the New York Herald Tribune. For the next hour, Shalleck wrote, Schmoockler watched as the crowd "created disturbances, hurled various missiles, broke store windows, set fire to some stores, pillaged others, and in general damaged property of various merchants in the locality." Canter also saw a fire at Anna Rosenberg's notion shop at 429 Lenox Avenue, which extended to the neighboring hardware store. At some point police arrived, but could not control the crowd. Officers "discharged their revolvers in an attempt to disperse the crowd," according to Shalleck's summary, and sometimes "succeeded in driving the participants from one side of the street, but they would then rush to the other side and back again, all the while continuing their destructive acts." The New York Times story on the Municipal Court trial reported this testimony simply as Schmoockler having “seen rioting in the neighborhood” that scared him, and a "Negro helper" not mentioned in the Shalleck's summary, omitting details about the crowd and its struggles with police.

By around midnight, the disorder and gunfire had become frightening enough to Schmoockler and the Black staff member that they "locked the doors, closed the [iron] gates" and left the store, according to Shalleck's summary. A later story in the New York Times that mentioned Shalleck's decision reported that the men left “when police began shooting about midnight” and omitted details of the lead-up to that decision. The Magistrate’s Court affidavit began with the store being closed without any mention of the context, and mistakenly had him leaving at 9.30 PM rather than midnight. What the manager should instead have done when faced with this disorder, lawyers defending the city implied in cross-examination reported by the New York Times, was move stock out of the windows and put it beyond the reach of looters, as Max Greenwald and Jack Sherloff did, and notify the mayor, sheriff or county of the attack on his property, an argument reported and dismissed by Justice Shalleck.

A crowd remained in the area after Schmoockler and his helper left. Around 1.15 AM, "a group of from thirty to forty persons smashed the windows" of Feinstein's store, pilfered bottles of whiskey and demolished the store front," according to the New York Herald Tribune report of testimony by "witnesses for Mr Feinstein" in the Municipal Court. Justice Shalleck and the New York Times mentioned the time of the attack, and the same details, although the newspaper story misattributed the testimony to Feinstein. It is not clear who the witnesses were; the store manager had left over an hour earlier, and police officers were unlikely to be testifying against the city. Both newspaper stories and Judge Shalleck's summary noted that police still had not controlled the crowd. Given that the store's iron gate had to be broken before the windows could be smashed, the attack would have taken more time and sustained, noisy violence than most, despite the number of people involved. Even with that opportunity to respond, police did not arrive until the crowd had largely finished looting the store, and made only one arrest. Around 1.20 AM, according to the Magistrate's Court affidavit, Officer Nathaniel Carter allegedly saw several men leaving the store carrying bottles. He arrested one of those men, Louis Cobb, a thirty-eight-year-old Black laborer, with one bottle of gin and two bottles of whiskey in his possession. Cobb lived on the next block, at 473 Lenox Avenue. His arrest was not mentioned in either the justice's decision or any of the newspaper stories about the attack on Feinstein's store. The damaged liquor store in a photograph published in the New York World-Telegram is almost certainly Feinstein's store. The caption mentions an iron grill that was torn down as well as smashed windows, and the storefront matched the Tax Department photograph.

Schmoockler put the total losses at around $1000 in the Magistrates Court affidavit. Feinstein later filed a claim for $627.40 in damages from the city, according to the Home News and New York American. He was not among the twenty business owners identified as the first to file claims identified by the New York Sun. Nonetheless, after the city opted to deny all the claims, Feinstein was the first of the 106 plaintiffs who filed claims after the disorder to go to trial, effectively making him the test case. As a result much of the newspaper stories on the trial focused on the legal basis for damages, with no details of what happened to Feinstein’s store in stories in the Home News, New York American, New York Herald Tribune, and World-Telegraph. The jury awarded him $450. Two months later, Justice Shalleck upheld that award, a decision reported in the New York Times and New York Herald Tribune. The award of damages likely helped Feinstein stay in business. A white-owned liquor store was found at 452 Lenox Avenue both by the MCCH business survey in the second half of 1935 and appeared in the Tax Department photograph taken in 1939-1941.

Louis Cobb appeared in the Washington Heights Magistrate's Court on March 20 charged with burglary. However, the affidavit making the complaint against him was not taken until March 25. In the interim, Magistrate Ford held Cobb without bail. An annotation in the docket book dated March 21 recorded "no bail in absence of record," suggesting police had not been able to produce his criminal record. Magistrates reaffirmed the denial of bail when Cobb's criminal record was eventually produced. He had been charged six times since 1920, for burglary, robbery, drug possession, homicide, procuring and possession of a firearm, resulting in two sentences to the State Prison at Sing Sing, two terms in the Penitentiary and a sentence in the workhouse, and two sentences for violating parole. The grand jury did not indict Cobb, instead transferring him to the Court of Special Sessions to be tried for petit larceny. That decision likely reflected the lack of evidence of him breaking into the store, and the value of the three bottles of liquor Officer Carter allegedly found on him; $7, according to the Magistrate's Court affidavit, well short of the $100 threshold for a prosecution for the felony of grand larceny. There is no evidence of the outcome of the case.
In the Municipal court on September 20 (1) It took until September 20 for the first of the claims for damages to come to trial. William Feinstein, the plaintiff, owned a liquor store at 452 Lenox Avenue, for which he filed a claim for $627.40 in damages. He was not one of the business owners represented by Barney Rosenstein; Charles Garfinkel was his attorney, according to the Home News. The trial took place over two days in the Municipal Court, before Judge Shalleck and a jury of six men. After only forty-five minutes of deliberation, the jury awarded Feinstein $450, just over 70% of his claim.

The newspaper stories about the case highlighted that the outcome of the case could set a precedent for other damage claims after the disorder amounting to $1 million. That was almost ten times the $116,000 reported as the total value of the claims in July. None of the stories provided any explanation for that dramatic jump. In fact, the $1 million total was not attributed to any source in stories in the New York Herald Tribune, New York Post, [unknown] Daily News and New York Amsterdam News (which continued to be the only Black newspaper to report the damage claims). Other stories attributed the number to Judge Shalleck, with the New York Times quoting him as telling the jury when he discharged them, "I understand that there is possibly $1,000,000 in such suits now pending against the city." The New York American published a similar quotation, while the Times Union, WT and Home News paraphrased Shalleck's statement. The New York Times also quoted Mayor La Guardia making the same claim, in his response to the verdict: "That award opens the way to claims against the city amounting to $1,000,000." A paraphrase of that statement appeared in the Daily News. The stories in the New York Herald Tribune, New York American, unknown/EJ that reported a response from the mayor did not include that statement; the Times Union, WT, New York Amsterdam News, New York Post, and Home News did not mention La Guardia at all. The Corporation Counsel lawyers' denial that the case was a test case was reported only in the New York Times. The story dismissed their statement that "each of the many suits growing out of the Harlem riot would be tried on its own merits" by pointing out that "five members of the city's legal staff were present," implying that was far more than was typical for such a trial.

- questions for jury (?) = NYP - NB NYT on jury instruction that fright was reasonable - it took them just 45 minutes to answer (WT)

- Corporation Counsel motion to set aside - on typo issues, not a riot, did not do everything could (NYP) (HT says did not give notice to Mayor or Sheriff)

- Judge supported verdict

- comment on law

- LaG's response “If it were permitted we would have deliberate attempts to start trouble so that someone could collect from the city." [NYT, 9/21]

- little attention to details of case except in NYT - NB how many stories got the address wrong = Lexington Ave instead of Lenox Ave