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New York General Municipal Law, § 71: Liability for damages by mobs and riots
1 2023-05-30T18:15:51+00:00 Anonymous 1 6 plain 2023-11-06T19:54:05+00:00 Anonymous"§ 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."
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In civil court (September 1935-March 1936)
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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, notified the authorities of the threat to their property, 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. That neglect is particularly striking given the emphasis on violence targeting property as the defining feature of the events in 1935 and the racial disorders in subsequent decades. The scale of the property losses reported in the claims, and the failures of police that contributed to the damage and made the city liable for it brought into focus how the disorder had challenged white economic and political power and the racial order that they imposed on 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 from Black residents. A story that appeared in several newspapers on September 16, 1909, after the deadline for the submission of claims, reported additional suits by relatives of six of those killed seeking an additional $35,000. To pay those damages, the city had to issue special bonds, which funded $45,000 in "judgements, costs, and interest" in August 1913, and to pay 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 $4,500 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 $1,000 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 1863, 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 1863, the city government's initial response to damage claims was to have the corporation counsel assess whether 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 were any trials reported in the press after the third case the city lost. The damages awarded in that final trial were significantly less than the sums claimed, as appears to have been typical for other lawsuits against the city: $24,450,640 of claims in 1934 had 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 in the Supreme Court may have provided a basis for the city to settle the remaining claims for amounts that it considered reasonable. Fifty claims for $102,448 had been settled for $25,000 by late October 1937, according to a brief story in the Chicago Defender. At that time, the cost of settling all the claims filed was estimated at $100,000. The claims filed after a subsequent outbreak of racial disorder in Harlem in 1943 offered further evidence that damages were paid in 1935. However, on that later occasion, the city would avoid paying similar claims as a provision of the New York State War Emergency Act passed in 1942 made section 71 inoperative. While that legislation was ostensibly concerned with the consequences of war, city officials recognized the benefits in regards to racial violence. In prompting such measures, the civil suits brought into focus how the disorder challenged white economic and political power and the racial order that they imposed on Harlem. The MCCH investigation, by contrast, would report few details of the nature and scale of the violence against people and property even as it directed attention to the broader issue of police violence targeted at Black residents of Harlem.
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Cases in the civil courts (106)
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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 Stekin 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 Stekin, 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. 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 $1,200, 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.
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In civil court on September 19 & 20
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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. -
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Before civil court, April 23
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On April 23, as the last case related to the disorder was presented to the grand jury and one of only ten prosecutions of those arrested during the disorder remaining to be decided in the criminal courts, the first cases began to make their way into the civil courts. Attorney Barney Rosenstein filed claims totaling almost $38,000 on behalf of twenty white business owners seeking damages from the city government for losses they suffered as a result of the disorder. The sums claimed ranged from $14,125 for damage to Harry Piskin's laundry to $47.40 for Joseph Cohen's business. Although newspaper stories reporting the filing focused on the seven claims over $1,000, the median claim was $733. Most of the businesses were located on Lenox Avenue or just off the avenue, in the blocks from 125th Street to 130th Street, with just four on 7th Avenue clustered around 127th Street. Nine of the businesses were neighbors. Four of the owners had lived in the same apartment building, neighbors at home as well as in business, relationships that likely led them to file claims together. Only three of the businesses had been among those reported as looted or identified as having been looted by an individual arrested during the disorder. As a group, the businesses did fit with the stores which were looted; the sixteen claimants whose businesses were identified included nine that involved food and drink, five that involved clothing, and two that involved other goods. These claims highlight the neglected details of the property damage in Harlem, revealing its variety and complexity as well as scale.
The claims went first to the Bureau of Law and Adjustment in the Department of Finance, to be assessed by the comptroller. Within a few days, he would summon the business owners to be questioned. In a typical case, based on that information, his office would decide what the city owed. Only when the claimant and the city could not agree on the sum did a claim result in legal proceedings in the city's civil courts.
However, these were not typical claims. Although actions against the city were not unusual, and in fact were increasingly common in the the years of the Great Depression, the government's liability for damage resulting from a riot was apparently not well known. Newspaper stories about the claims included details of statute on which Rosenstein based the claims: Section 71 of the General Municipal Law, dating from 1855. It 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. With only a month having passed since the night of the disorder, the claims had clearly been filed before the deadline. Whether the business owners had met the other requirements of the statute were questions that the city's lawyers, the Corporation Counsel, would have to answer.
In the meantime, two months remained in which additional claims could be filed.
This page references:
- 1 2023-05-30T18:18:57+00:00 Consolidated Laws of the State of New York, Vol. 2. Election Law to Insanity Law (Albany: J. B. Lyon, 1909). 5 plain 2024-01-19T00:55:36+00:00