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In civil court on March 4, 1936
The differences between this trial and the earlier proceedings extended to how the corporation counsel approached defending the city. His argument still centered on the question of whether a riot had taken place, but now advanced a definition of a riot as involving concerted action that was not present in the disorder in Harlem. The exact terms Troy employed are uncertain in the absence of a legal record of the trial, as the three newspaper stories that mentioned the city's argument each reported different language: a "concerted uprising” according to the New York Post; "concentrated uprising" in the New York Amsterdam News; and "concerted movement of the mob" in the California Eagle. That was all the details that the stories gave of the definition, so the authorities on which it relied are unknown.
On what basis Troy argued that concerted action was not present in the Harlem disorder is also unknown. However, in another apparent departure from the earlier trials, he called witnesses in support of the city's defense. Three senior police officers testified: First Deputy Police Commissioner Harold Fowler, and two officers who had been present in Harlem during the disorder, Chief Inspector John Seery and Inspector John Di Martini. They could have described the disorder as involving a variety of individuals and groups behaving in different ways at different times in different places rather than a single group acting together. Drawing on that testimony, Troy might have argued that the crowd Anthony Avitable saw breaking into his store, those who attacked George Chronis' restaurant, and those who threw stones through the windows of Irving Stekin's grocery store were unrelated, each acting independently rather than in concert, pursuing their own goals, not participating in a riot.
Whatever the substance and logic of Troy's defense of the city, it proved no more persuasive than that offered by Arnold. The jury awarded the business owners damages totaling $1,200. On first glance, that was a larger sum than the verdicts in the previous trials, and most newspapers simply reported the number. But seen in relation to claims that had totaled $20,000, the damages were on a significantly smaller scale. Feinstein and Rosenberg had received 70% and 82% of the sums they had claimed. Irving Stekin's award, the largest made by this jury, by contrast, amounted to only around 27% of his claims, while Michael D'Agostino's award, the smallest made by the jury, amounted to only 20% of his claims. (The individual awards to the other plaintiffs were not reported.) In those terms, the verdicts cost the city far less than those in the previous trials.
In the immediate aftermath of the trial, the corporation counsel responded, as he had after the previous two trials, with a plan to appeal the verdict to a higher court. However, no appeal was filed. Nor were any further trials of claims for damages from the disorder reported in the press, notwithstanding that Barney Rosenstein had told reporters that fifteen similar cases were awaiting trial in the Supreme Court. If those cases, and the one hundred and sixty cases reported pending in the Municipal Court after Rosenberg's lawsuit, did not come to trial, the likeliest explanation is that the city reached settlements with the business owners. The relatively low awards in the Supreme Court verdict could have established a precedent for damages more manageable and acceptable for the city than the awards in the earlier trials. What a journalist from the Chicago Defender found when they "probe[d] into the city files" at the end of October, 1937 appeared to confirm that was what was happening. The story reported that fifty claims for $102,448 had been settled for $25,000 by that date. Twenty-four additional suits in which damages were awarded were still being paid. At that time, the cost of settling all the claims filed was estimated at $100,000.
Further evidence that the city had paid damages came after racial disorder broke out again in Harlem in 1943. Eight hundred claims were filed against the city for $4 million of damages, the New York Times reported, with Barney Rosenstein again among the attorneys representing the neighborhood's business owners. That scale of action would have been unlikely had the claims filed only eight years earlier not produced payments from the city. However, the law had changed since 1935. The War Emergency Act of 1942 had suspended section 70 of the General Municipal Law. While some uncertainty existed about whether the suspension applied to events not directly related to the war, the confidence of city officials that it did proved well placed. Barney Rosenstein was one of those who appealed a claim to test the city's liability; the Appeals Court ruled in 1945 that the Act prevented the award of damages, upholding the decision of the New York Supreme Court a year earlier. The suspension of section 70 was not lifted at the end of the war, but instead incorporated into the New York State Defense Emergency Act of 1951, which provided for civil defense administration, and renewed into the 1970s. Consequently, the city was also protected from liability for damage resulting from the racial disorder in Harlem in 1964 even as section 70 remained on the books. These continued efforts to protect the city from a repeat of the litigation in 1935 brought into focus how the disorder had challenged white economic and political power and the racial order that they imposed on Harlem. While civil litigation made evident the scale of the violence to an extent that the criminal prosecutions had not, the investigations and reports of the MCCH took only limited note of those accounts. Instead, they gave attention to another form of violence absent from the criminal prosecutions: police violence against Harlem residents.
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- "106 Suits Filed Under Mob Law in Harlem Riot," New York World-Telegram, July 23, 1935 [clipping].
- "7 Harlem Store Owners Win Riot Damage Suits," New York Herald Tribune, March 5, 1936, 9.
- "City Loser in 7 'Riot' Suits," New York Amsterdam News, March 7, 1936, 1.
- "City Loses $1,200 More for Harlem Riot Damage," New York Post, March 4, 1936.
- Dominic Capeci, The Harlem Riot of 1943 (Philadelphia: Temple University Press, 1977), 161-163.
- Finkelstein v. City of New York, 182 Misc. 271 (1944).
- "The "Riot" Is Over but the Suits Linger On," California Eagle, March 13, 1936, 9 [Newspapers.com].
- Louis Lefkowitz, "Municipal Liability for Damage Caused by Riot Comment," Brooklyn Law Review, 35 (168-1969): 413.
- Joseph Epstein, "Municipal Tort Liability: Statutory Liability of Municipalities for Damage Caused by Mobs and Riots: New York General Municipal Law Section 71: Suspension of the Statute," Cornell Law Quarterly, 50 (1965): 699-702.
- "N. Y. Held Liable for Damage in Harlem Riots," Chicago Tribune, March 5, 1936, 2.
- "N. Y. Riot Claims Still Being Paid," Chicago Defender, October 30, 1937, 2.
- "Harlem Tradesmen Ask for More Police," New York Times, September 2, 1943, 21.
- "Riot Claims Against NYC in Millions," New York Amsterdam News, September 26, 1964, 16.
- "Loses Riot Suit Against City," New York Herald Tribune, February 24, 1945, 13.