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

Louis Lefkowitz, "Municipal Liability for Damage Caused by Riot Comment," Brooklyn Law Review, 35 (168-1969): 413.

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In the Supreme court on March 4, 1936 (7) Four months elapsed after Judge Shalleck upheld the verdict awarding damages to William Feinstein before any further damage claims went to trial, in the Supreme Court, not the Municipal Court, on March 4, 1936. Seven cases were decided at the trial, with the jury awarding a total of $1200 in damages. The Supreme Court heard larger claims, but as only two of the seven business owners filed claims larger than those of Feinstein and Rosenberg tried in the Municipal Court, it appears these cases were tried in that court because they were grouped together. What the seven plaintiffs had in common was their attorney: Barney Rosenstein, the lawyer at the center of newspaper stories about filing claims in April and July 1935. He was mentioned in stories in the New York Post, New York Amsterdam News, and California Eagle (the last a Black newspaper). The number of cases and total awards were reported in stories in New York Times, New York Post, New York Herald Tribune, Daily News, and New York Amsterdam News, and beyond the city, in the Chicago Tribune, and California Eagle. The total was mistakenly reported as $2000 in a brief story in the Pittsburgh Courier, while a similarly brief Afro-American story did not mention a total.

The largest award, to Irving Stetkin, did feature in the stories in the Pittsburgh Courier and Afro-American, and in the New York Times, New York Post, New York Herald Tribune and New York Amsterdam News. That Stetkin's claim involved damage to two stores was mentioned in all those stories other than the Pittsburgh Courier. The jury awarded him $550 according to the New York Times and New York Herald Tribune, $700 according to the New York Post and New York Amsterdam News, and $500 according to the Pittsburgh Courier. Stetkin's award was contrasted with the smallest award in some of those stories, which was to Michael D'Agostino, of $70 for two stores according to the New York Times and New York Herald Tribune, and of $25 for one store according to the New York Post and New York Amsterdam News.

What the store owners had claimed was mentioned only in the New York Times and New York Herald Tribune, as $20,000 in total, with the Afro-American saying Stetkin has claimed a total of $3000 for his two stores and the New York Times and New York Herald Tribune a total of $2000. If the total was accurate, the awards were for a significantly lower proportion of the claims than in the verdicts against Feinstein and Rosenberg: only 6% in total and 27.5% for Stetkin if award was $550 of $2000 or 23% if it was $700 of $3000, rather than 70% for Feinstein and 82% for Rosenberg. Newspaper stories in July 1935 had reported Stetkin claimed $2068 for a single store, so the larger sum may be the most accurate. Newspaper stories in April 1935 had reported D'Agostino claimed damages of $146.75 for one store and $196.25 for another, a total of $343. An award of $70 for the two stores amounted to 20% of those claims. All seven storeowners were identified in the New York Herald Tribune, but the story gave no information on either the claims or awards of the other five plaintiffs. Three are among those identified in stories in April 1935. Saloway's claim was $676 and the claim for George's lunch, owned by George Chronis, was $14,000. While Berenson was not mentioned in those stories, the business at that address was, with Anthony Avitable as the owner. If that was business referred to in the story, the damages claimed were $537. All the claims mentioned in the press total $18,566, leaving $1444 for the claims by Schwartz and Romanoff. Given the sums claimed by D'Agostino, Saloway and Avitable, the reported claims fit with the total claimed in the cases at trial being $20,000. It is striking that none of the stories mentioned the $14,000 claim for damages to George's Lunch resulting in an award of less than the $700-$550 that Stetkin received. If the dramatically reduced proportion of the claims the jury awarded is taken into account, then the trial does not seem to be the straightforward loss for the city that the press reported it to be. Certainly, further awards at those levels would not impose the burden on the city predicted after the earlier trials.

A different Corporation Counsel lawyer defended the city in this trial, Matthew Troy rather than Aaron Arnold. Troy also appears to have made a different argument than Arnold, which he supported with testimony from police witnesses who had not been called in the previous trials. That his approach was new would fit with the description of the trial as a "test case" in the Daily News, Chicago Tribune, and Afro-American notwithstanding two other trials have occurred. In continuing to assert the city's position that a riot had not taken place, Troy argued “a riot is a concerted uprising and the disorders in Harlem did not answer that description,” according to the New York Post. The New York Amsterdam News and California Eagle also reported similar phrases were part of the city's defense, "no concerted movement of the mob" in the later story and "no concentrated uprising" in the former story. The city's assertion that there had not been a riot appeared without any details of the basis of the claim in the New York Times, and Chicago Tribune. No mention was made of the arguments in the New York Herald Tribune, Daily News, Afro-American and Pittsburgh Courier. Nor did any story refer to Judge Shalleck's arguments for dismissing the city's claim in his decision in the Feinstein case.

Troy had First Deputy Police Commissioner Harold Fowler, Inspector John Seery and Deputy Inspector John Di Martini testify in support of the city's defense, according to the New York Post, New York Amsterdam News and California Eagle. Their evidence did not persuade the jury, who likely held to their own understanding of a riot. Efforts to convince them that riot had a different meaning in civil court than criminal court would have run up against the use of the label riot to describe events in Harlem in the press.

As in the previous trials, the Corporation Counsel said that the city would appeal, according to the New York Times and Afro-American, and "probably appeal" according to the New York Herald Tribune. Most of the damage claims still had to be resolved at this time. While the New York Post and New York Amsterdam News referred to pending suits totaling $1 million, as had stories about Feinstein's earlier trial, the New York Times, New York Herald Tribune and Chicago Tribune mentioned fifteen "similar" cases awaiting trial in the Supreme Court. The later story attributed that information to Rosenstein, which suggests it referred to plaintiffs that he represented. Twenty store owners had appeared on the list he circulated to the press in April 1935.

There is no evidence, however, that any further claims went to trial or that the city appealed the verdicts in this trial. Given that this was the city's third loss at trial, which both New York Post and New York Herald Tribune noted, and that the jury awarded relatively small sums, city officials may have decided to settle the other claims.

Nor is there any evidence that efforts were made to amend the General Municipal Law to reduce or remove the city's liability for riot damage. However, in 1942, that section of the statute was suspended as part of the War Emergency Act. As a result, the law was not in effect when racial disorder broke out in Harlem in 1943. Notwithstanding the suspension, the New York Times reported 800 claims were filed against the city for $4 million of damages, evidence that the litigation in 1935 had increased awareness of the statute and likely had resulted in additional awards of damages beyond those in the three trials. Barney Rosenstein was again among the attorneys involved in those actions, and in trying to find a way around the suspension. He took a claim to the Appeals court to test the city's liability; the judges ruled in 1945 that the Act prevented the award of damages, as the New York Supreme Court had a year earlier. City officials had been confident of that outcome, historian Dominic Capeci has shown. The suspension was not lifted at the end of the war, but instead incorporated into the New York State Defense Emergency Act of 1951 that provided for civil defense administration, and renewed into the 1970s. Consequently, the city was also protected from liability for damage from the racial disorder in Harlem in 1964. Nonetheless, at least thirty-eight claims were again filed, the New York Amsterdam News reported, despite recognition that the statute was suspended. The city's press did not report the fate of those claims, nor did the one historical study of the 1964 racial disorder that mentioned them, Christoper Hayes' The Harlem Uprising.
In civil court on March 4, 1936 Four months elapsed after Judge Shalleck upheld a jury's decision to award damages of $450 to William Feinstein before any further claims resulting from the disorder went to trial. Those legal proceedings differed significantly differed from the two previous trials. The venue was the Supreme Court, not the Municipal Court, a change that resulted from the larger sum of damages claimed, a total of $20,000. Rather than a single plaintiff, the trial had seven: Anthony Avitable, George Chronis, Michael D'Agostino, Jacob Saloway, Harry Schwartz, Irving Stetkin and the unnamed owner of the Romanoff Drug Store. The damages were not distributed evenly among those seven plaintiffs; Chronis' claim was for $14,000 after crowds "completely demolished" his restaurant. All those business owners had been identified in the press in April and July as filing claims, and all were represented by attorney Barney Rosenstein. A different attorney opposed Rosenstein, with Assistant Corporation Counsel Matthew Troy taking the place of Aaron Arnold.

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 that attacked George Chronis' restaurant, and those that threw stones through the windows of Irving Stetkin'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 $1200. 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 Stetkin'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 city's losses from the verdict were far less than in the previous trials.

In the immediate aftermath of the verdict, the Corporation Counsel responded, as he had after the previous two trials, with a plan to appeal it 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, as the New York Supreme Court had 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 challenged white economic and political power and the racial order that they imposed on Harlem.