Duryea v. Mayor of New York

| New York Court of Common Pleas | Jan 3, 1882

Beach, J.

[After stating the facts as above.]—I am of opinion that the correct solution of the question presented on this appeal, is found in the generally accepted legal definition of the terms mob or riot. Should the assemblage described in the evidence be rightfully designated by those terms, the liability of the defendants would necessarily result, and the disposition of the case by the court below be erroneous. In Hawkins’ Pleas of the Crown, c. 65, § 1, a riot is defined to be “ a tumultuous disturbance of the peace by three or more persons assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same, in a violent and turbulent manner to the terror of the people, whether the act be itself lawful or unlawful.”

There is nothing in the proofs from which this court can conclude that the gathering was possessed of any intent to resist opposition by the public authorities, or private citizens. The only fact bearing at all upon the question, is that the assemblage dispersed upon sight of a single police officer, strongly indicating an entire submission to constituted authority. In the words of one witness, “ they were occupied for an hour to an hour and a half before the officer came and ran them off.” In addition there was nothing done to the “ terror of the people,” although a witness for the plaintiff testifies to having been put in fear, which consisted of seeing the boys and going inside his own house.

But considering the question upon a broader basis than is afforded by technical definition, it would be impossible to characterize the occurrence as anything but a piece of malicious mischief, accomplished not with any common purpose, but rather to gratify individual propensity. The legislature cannot have intended to impose liability in such cases, thus making the city an insurer of perfect quiet, and answerable for all damage from any breach of the peace by three or more persons. The law-making power does not inflict punishment of this character, that no vigilance can avoid or power prevent. If so, a practical impossibility is called for, and the necessity created of lining every street with policemen, so that three or more boys cannot break the windows of an unoccupied building, or indulge in any similar proceeding inflicting damage. There is no rule of construction which would warrant or uphold such an interpretation of the act. As said by Chief Justice Denio in Darlington v. Mayor, &c. of New York (31 N.Y. 164" court="NY" date_filed="1865-01-05" href="https://app.midpage.ai/document/darlington-v--mayor-c-of-new-york-3613942?utm_source=webapp" opinion_id="3613942">31 N. Y. 164), “ the policy on which the act is framed may be supposed to be, to make good at the public expense, the losses of those who may be so unfortunate as, without their own fault, to be injured in their property by acts of lawless violence of a particular kind, which it is the general duty of the government to prevent.”

In conclusion, I am of the opinion that the case at bar does not disclose acts of the kind contemplated by the legislature, or which it is the general duty of the government to prevent. The performance of such duty, would be impossible with regard to occurrences similar to the one described in this record. In this view consideration of the other exceptions is needless.

The dismissal of the complaint is affirmed, and judgment directed for the defendant with costs.

J. F. Daly, J., concurred.

Exceptions overruled, and judgment ordered for defendant, with costs.