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

"Jury Gives $450 For Damages in Harlem Riots," New York Herlad Tribune, September 21, 1935

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Cases in the civil courts (106) At least one hundred and six claims seeking damages from the city were filed, with sixty-five more suits rejected because they were filed after the three-month window allowed by the statute. Those numbers were consistently reported by multiple newspapers in stories in July, 1935, but appear to have come from Barney Rosenstein, an attorney representing many of those plaintiffs, rather than an official source. The General Municipal Law required claims be filed within three months of the damage, so no additional cases could have been filed after that date. Nonetheless, a higher total, 160 cases, was reported in October, as only a proportion of the total, only those in the Municipal Court which handled smaller claims. Only a handful of newspapers published that number. The New York Herald Tribune attributed that information to the Corporation Counsel, an official source, but no other story provided a source. The only indication of how many cases were in the other civil court, the Supreme Court, came in stories about the first trial in that court in March 1936. However, the number came not from an official source but again from Rosenstein, who mentioned fifteen "similar" cases. That number likely only represented cases that involved plaintiffs he represented. As the total of 106 cases was the most widely and consistently reported, it was used as a baseline in this study.

Only twenty-seven businesses are identified in reports of the litigation. None of those businesses had Black owners, and there was no evidence that Black business-owners filed damage claims. All but two of those business were represented by Barney Rosenstein. While several newspapers reported that he represented around half of the 106 cases reported in July, 1935, it is not clear how representative these plaintiffs are of those who filed claims. All but four of the businesses were located on Lenox Avenue, or just off the avenue, in the blocks from 125th Street to 130th Street. Several of those businesses were neighbors: Jacob Saloway, Anthony Avitable and Manny Zipp at 381 and 383 Lenox Avenue; Jack Stern, Sam Apuzzo and Michael D'Agostino at 348 Lenox Avenue; Irving Guberman and Samuel Mestetzky at 60 West 129th Street; and Michael D'Agostino and Irving Stetkin at 361 and 363 Lenox Avenue. In addition, at least as recently as 1930, four of the business owners, Michael D'Agostino, William Gindin, Jacob Saloway and Irving Stetkin, had lived in 1930 in the apartments above 363 Lenox Avenue, a building anomalous in this area of Harlem in being home to only white residents. Barney Rosenstein represented all those men. Both the business owners not represented by Rosenstein had stores further north on Lenox Avenue, above West 131st Street. There is no evidence of whether their attorneys represented other business owners who filed claims; the New York Herald Tribune claimed that there were other lawyers like Rosenstein with multiple clients, a situation also seen in the aftermath of the racial disorder in Chicago in 1919.

Six insurance companies joined in suits against the city. The Royal Insurance was identified as a co-defendant in the trial of William Feinstein's claim in the Municipal Court. It took a position at odds with the city in arguing that a riot had occurred, and thus the company had no liability as their policies excluded that situation. Approximately two-thirds of Harlem’s businesses had insurance according to a widely reported survey of forty-seven companies who paid out $147,315 to replace 697 glass windows broken in 300 stores. But insurance was not available throughout Harlem. One plaintiff, Estelle Cohen, complained to Mayor LaGuardia that she had no way of making up her loss of at least $800 as “we do not carry burglary insurance on account of not being able to get it up in that section,” just south of 132nd Street.

The total of the damage claims filed against the city was reported as $116,000 in July, 1935. Stories in the Daily News, New York World-Telegram and the New York Amsterdam News, Chicago Defender and Pittsburgh Courier added that the claims ranged from $2.65 to more than $14,000. The first twenty claims announced in April by Barney Rubenstein made up just under $38,000 of the total, and ranged from $14,125 to $47.40, with a median claim of $733. Stories about the first trial to settle a claim reported a total of $1 million in claims, which some newspapers attributed to the judge and which a small number quoted Mayor La Guardia as saying. No sources noted or explained the jump in the total from what was reported in July. (The New York Herald Tribune had included an estimate of a "Million" in the headline of an early story on the disorder, but other newspaper stories in the immediate aftermath of the disorder had offered lower estimates: for example, around $500,000 according to the Afro-American, "more than $400,000" according to the Associated Press and "more than $350,000" according to the Pittsburgh Courier. Most newspapers simply reported extensive property damage.) The claims that went to trial in the Municipal Court were for $627.40 and $980.13, and in the Supreme Court, $20,000. The type of business was identified for only sixteen of the twenty-seven claims. Nine of those business involved food and drink, five business involved clothing, and two businesses involved other goods The missing information, together with the small number of identified business, mean little weight can be given to that distribution, but it was in line with the targets of looting during the disorder. In other words, there is no evidence that the owners of particular types of businesses filed claims more often than others.

At least initially the city's lawyer, the Corporation Counsel, pursued a strategy of denying all the claims. As a result, the claims had to be resolved in the city's civil courts, the Municipal Court, the venue for smaller claims, and the Supreme Court, the venue for larger claims. Only three trials were reported in the press, two in the Municipal Court in September and October 1935, and one in the Supreme Court in March 1936. The interval between the deadline for filing claims in June and the legal proceedings was likely the result of the full calendar of the courts noted by the New York World-Telegram. Newspaper stories referred to all three trials as test cases, although the New York Times reported that the city's lawyers denied that and insisted they would try all the claims individually on their merits. The cases of William Feinstein's liquor store and Anna Rosenberg's notion store tried in the Municipal Court appear typical of the claims filed after the disorder, other than the fire set in Rosenberg's store. Only two other stores were damaged by fire during the disorder. They were the only two plaintiffs identified in the press not represented by Barney Rosenstein. Charles Garfinkel represented William Feinstein. Anna Rosenberg's attorney was not identified.

The city's liability for damages resulting from a riot, while seemingly not well known, at least among reporters, was clearly established by state law and by judicial decisions that interpreted that law broadly. The legal basis for the claims was a statute enacted in 1855. Section 71 of the General Municipal Law 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, notified the authorities of the threat to their property, and brought the action within three months. The manager of Feinstein's store and the owner of a business near Rosenberg's closed store described crowds on the street breaking windows, looting stores and setting fire despite the presence of police. Rosenstein's clients, based on their testimony to the Comptroller before their trials, more explicitly criticized police for providing insufficient protection for their stores, and refusing direct appeals for help. Such failures were not necessary to obtaining damages; they did, however, establish that the business owners and their staff had not contributed to the damage and that the authorities were aware of the riot. This evidence effectively left the city with only one defense, that the events in Harlem had not been a riot. That was the main claim of a motion that the Corporation Counsel filed after the jury ruled in favor of William Feinstein and awarded him damages. The judge in that trial, Benjamin Shalleck, reserved judgement on that motion so he could research the law; the judge in Rosenberg's trial simply dismissed the city's motion after that jury also ruled in the plaintiff's favor. Shalleck confirmed that position when he published his opinion two weeks later. In the Supreme Court a month later, the Corporation Counsel advanced a specific definition of a riot that he contended events in Harlem did not fit, and called three senior police officers to give testimony in support of that position. Again, the jury was not persuaded and awarded damages to the seven plaintiffs whose cases Rosenstein presented.

While the city lost all three cases, the damages the jury awarded in the two Municipal Court cases were significantly larger than those later awarded by their counterparts in the Supreme Court. Feinstein's award was $450, 70% of his claim of $627.40. Rosenberg's award was $804, 82% of her insurance company's appraisal of her losses, $980.13. The seven plaintiffs in the Supreme Court collectively received $1200, only 6% of their $20,000 of claims. That dramatic drop in the awards was not remarked upon or explained in the press, but it could explain the lack of subsequent trials. Awards of that scale could have encouraged the city to settle the other cases.

Events
In the Municipal court on September 19 & 20 (1) It took until September 19 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. (However, the New York Herald Tribune did note that, “In many cases the property owners have banded together, retaining a single lawyer and filing suits on blanket complaints.”) 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, New York Sun, Daily News and in the Black newspapers the New York Amsterdam News and Afro-American. (A New York Age editorial that included few details of the case stated more vaguely that additional claims would "cost the city administration a pretty penny.") 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, New York World-Telegram and Home News paraphrased Shalleck's statement. It seems likely that the Corporation Counsel or city officials had supplied him with that information as 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, New York Sun and New York Age that reported a response from the mayor did not include that statement; the Times Union, New York World-Telegram, 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.

Only the New York Post made clear the questions the jury had to decide: "Was there a riot on March 20? Was the plaintiff's property damaged? Did the plaintiff use all reasonable diligence to prevent damage to his property?" Only the New York Times reported any of the evidence related to those questions presented during trial. A story on the first day of the trial highlighted cross-examination by the Corporation Counsel that "brought out that, despite the disturbances in the neighborhood, [the store manager] had made no attempt to remove the bottles of liquor from the show windows." That issue featured again in the newspaper's story on the second day, which mentioned that the manager testified he had been "too frightened to know what to do about it." Fright was "a reasonable factor," the judge instructed the jury, undermining the efforts of the city's lawyers to present the manager's inaction as contributing to the damage done by looting. Likely helped by that guidance, the six-man jury took only forty-five minutes to reach a verdict, according to the New York World-Telegram.

Judge Shalleck supported the jury's verdict. Discharging them, he said "from the facts of the case I don't think you could have done anything else." The stories in New York Times, New York Post, New York Herald Tribune, and New York World-Telegram quoted that statement, while the New York Sun and Times Union simply stated that he approved the verdict. Shalleck's support was omitted from the brief stories in the Daily News, New York American and New York Amsterdam News. The New York American did quote extensively the judge's comments on the law on what he said about the law under which the claim was made: "The Legislature enacted this law placing property damage in riots on the county and city to inspire citizens to proper vigilance in support of law and order. It is a punishment for permitting riots. The law is drastic and may be changed at the next session." The New York Post and New York World-Telegram added, "In the meantime, it should be a lesson to our people not to be too eager to incite riots and not to lose their heads too quickly." The New York Herald Tribune and New York Sun only quoted that sentence and the one about the law being drastic. Those two publications also quoted the judge's comments about the riot itself, that "another element came into the scene and incited riot, although the City of New York tried every conservative way of stopping the disturbance without bloodshed." By including the passage, the publications were returning to the focus on the Communists as responsible for the disorder, notwithstanding the evidence at the MCCH hearings. While the New York Sun did not make that connection explicit, the New York Herald Tribune did: "his remark was accepted as referring to Communists."

The Corporation Counsel responded to the verdict by filing a motion to have it set aside. Stories in the New York Times, New York World-Telegram, New York Sun, and New York Amsterdam News mentioned only the motion, not the basis for it. Details were provided in the New York Herald Tribune, New York American and New York Post: all three stories reported the motion argued that the date on the complaint was wrong, and that the events were not a riot. The New York Post reported an additional argument that Feinstein's staff did not do everything they could to avoid damage, whereas the New York Herald Tribune reported that Feinstein had failed to give notice to the Mayor and Sheriff of the disorder, and the New York American that he "advanced technical points. Other than the error in the complaint, the issues raised by the motion were typical of defenses offered against claims under such municipal laws. The Times Union and Daily News did not mention the motion. Shalleck reserved his decision on the motion, and gave parties two days to give him information related to it.

Only some of the stories included Mayor La Guardia's response to the decision. "If this decision is allowed to stand, it will be a very serious matter for the city. It would open up a new form of arson," the New York Herald Tribune, and New York Sun quoted him as saying. Asked to clarify that remark, the mayor added that the decision "would encourage property owners to stir up trouble with the express purpose of having their premises burned or damaged so that the city could be made to pay for repairs or valueless stock." The New York Times quoted only the clarifying statement: “If it were permitted we would have deliberate attempts to start trouble so that someone could collect from the city. We simply cannot allow the law to stand. The Daily News and New York American noted only that the mayor said the city would appeal. The other stories on the trial did not include La Guardia's response. The mayor's concern with arson was not derived from the events of the disorder: only four fires were reported, one reason why the damage was not as great as in Chicago in 1919 or East St Louis in 1917.

Missing from the stories are details of the evidence presented to support Feinstein's claim. Only the New York Times story included the store manager's evidence discussed above, and that was the only evidence mentioned. Moreover, stories in the Daily News, New York American, New York Herald Tribune New York World-Telegram and Times Union incorrectly gave the address of Feinstein's store as Lexington Avenue rather than Lenox Avenue. The only details of the testimony are those included in Shalleck's published decision on the city's motion.
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, 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," Shalleck wrote. 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. No details of what happened to Feinstein’s store were included in stories in the Home News, New York American, New York Herald Tribune, and New York World-Telegram. The jury awarded him $450. Two months later, Justice Shalleck upheld that award in 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 was no evidence of the outcome of the case.
In civil court on September 19 & 20 The first trial to resolve a claim for damages took place in the Municipal Court on September 19 and 20, 1935, before Judge Benjamin Shalleck and a jury of six men. The plaintiff, William Feinstein, was not one of those identified in earlier newspaper stories on the claims and was not represented by the attorney who filed those claims, Barney Rosenstein. He owned a liquor store located at 452 Lenox Avenue, for which a claim of $627.40 of damages had been filed by his lawyer, Charles Garfinkel. Aaron Arnold, an Assistant Corporation Counsel, represented the city, together with four other staff. The trial was reported by the press as a test case, the outcome of which would set a precedent for other claims. The city's lawyers disputed that characterization, telling a journalist from the New York Times that "each of the many suits growing out of the Harlem riot would be tried on its own merits." The response to the jury's verdict belied that claim.

While Feinstein was the plaintiff in the case, he had not been at the liquor store on the night of the disorder, and if he testified at all would have given evidence only about the details of his losses. The only reported testimony, summarized most fully in a later published decision by Judge Shalleck, came from the white store manager, David Schmoockler. He focused not on the absence of police, as had the testimony given by most of the businessmen represented by Barney Rosenstein, but on their ineffectiveness Around 11.00 PM, he and a Black staff member saw a crowd of about thirty people gather nearby. For the next hour, they 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." At some point police arrived, but could not control the crowd. Officers "discharged their revolvers in an attempt to disperse the crowd," 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." By around midnight, the disorder and gunfire had become frightening enough to Schmoockler and his Black colleague that they "locked the doors, closed the [iron] gates" and left the store. About an hour later, despite the presence of police in the area, a group of thirty to forty smashed the windows of Feinstein's store, took bottles of whiskey and demolished the store front.

Cross-examining Schmoockler, Arnold tried to shift responsibility for the damage from the police to Feinstein's staff. He questioned him about whether he had attempted to remove the bottles of liquor on display in the windows after the crowd arrived on the street. The manager responded he had been "too frightened to know what to do about it." The question related to one of the requirements of the law, that a plaintiff had "used all reasonable diligence to prevent such damage." Whatever doubt Arnold had raised in the jury about whether Schmoockler had done enough to prevent the store's merchandise from being looted was countered by Judge Shalleck's later instruction to the jury that fright was "a reasonable factor." Any witnesses who testified on behalf of the city or other defenses Arnold raised went unreported in the press.

The six-man jury needed only forty-five minutes to agree on a verdict awarding $450 damages to Feinstein, 70% of the sum he had claimed. Discharging the jury, Judge Shalleck offered his support for their decision, telling them "from the facts of the case I don't think you could have done anything else." Having been made aware that "there are now $1,000,000 in law suits pending," presumably by Arnold, he was less supportive of the statute. "The Legislature enacted this law placing property damage in riots on the county and city to inspire citizens to proper vigilance in support of law and order. It is a punishment for permitting riots. The law is drastic and may be changed at the next session. In the meantime, it should be a lesson to our people not to be too eager to incite riots and not to lose their heads too quickly."

Arnold responded to the verdict by filing a motion to have it set aside. He argued that none of the requirements of the statute had been met: the events of March 19 and 20 were not a riot, taking exception when Shalleck gave the jury the definition of riot contained in the Penal Law rather than articulating a different definition for civil suits; Feinstein's staff did not do everything reasonable to prevent the damages he suffered; and they had not notified the mayor or sheriff of the threat to the store, a question Shalleck had withdrawn from the jury's consideration as unnecessary in the circumstances of the damage to the liquor store. In addition, Arnold argued that the date on the complaint was wrong. While Judge Shalleck's comments after the verdict indicated little sympathy with those arguments, he reserved his decision on the motion, giving himself time to research the law.

Mayor La Guardia made clear that he thought Shalleck should strike down the verdict, presenting it as the precedent that the city's lawyers insisted it was not. "That award opens the way to claims against the city amounting to $1,000,000," he told journalists. "If this decision is allowed to stand, it will be a very serious matter for the city. It would open up a new form of arson." Asked to clarify that remark, the mayor added that the decision "would encourage property owners to stir up trouble with the express purpose of having their premises burned or damaged so that the city could be made to pay for repairs or valueless stock." Just what had caused the total of the claims against the city to jump from $116,000, the sum widely reported in July, to $1 million was not explained. Certainly, the new number served to increase pressure on Shalleck and his judicial colleagues to interpret the law in the city's favor. La Guardia would have to wait almost two months to hear if the scenarios he invoked would lead Shalleck to deliver such a decision.