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

New York General Municipal Law, § 71: Liability for damages by mobs and riots

Consolidated Laws of the State of New York, 1909, ch. 24.

"§ 71. Liability for damages by mobs and riots. A city or county shall be hable to a person whose property is destroyed or injured therein by a mob or riot, for the damages sustained thereby, if the consent or negligence of such person did not contribute to such destruction or injury, and such person shall have used all reasonable diligence to prevent such damage, shall have notified the mayor of the city, or sheriff of the county, of a
threat or attempt to destroy or injure his property by a mob or riot, immediately upon acquiring such knowledge, and shall bring an action therefor within three months after such damages were sustained. A mayor or sheriff receiving notification of a threat or attempt to destroy or injure property by a mob or riot shall take all lawful means to protect such property; and if he shall neglect or refuse, the person whose property shall be destroyed or injured, may elect to bring his action for damages against such officer instead of the city or county."

New York General Municipal Law

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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, and brought the action within three months. The manager of Feinstein's store [Where Rosenstein's clients had

as proportion of claims]

[NB out of business vs stayed in business?]

Events
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.

This page references:

Consolidated Laws of the State of New York, Vol. 2. Election law to Insanity law (Albany: J. B. Lyon, 1909)