Salisbury v. County of Washington , 48 N.Y.S. 122 ( 1897 )

McLaughlin, J.

The plaintiffs7 right to recover is based upon the provisions of section 21, chapter 685 of the Laws of 1892, which reads as follows:

“A city or county shall7 be liable 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 á mob or riot, immediately upon acquiring such knowledge, and shall bring anj action therefor within .three months after such damages were sustained.77 .

Under this statute, to- entitle, a plaintiff to recover, he must allege in his complaint and prove upon the trial: (1) That the damages for which a recovery is sought were occasioned by a mob or riot; (2) Without his consent or negligence; (3) That he used all reasonable diligence to prevent such-damage; (4) That he notified the mayor of the city, or sheriff of the county, of a threat or attempt to destroy the property injured, immediately upon acquiring such knowledge; (5) The commencement of the action within three months • after the damages were sustained.

The plaintiffs in this action, appreciating the force of the above-mentioned statute, set out these necessary allegations in their complaint. Did they prove them upon the trial? After a c-areful examination of all of the evidence offered, I am satisfied that they failed in at least two particulars: (1) They failed to prove thalj they notified the sheriff of the county of a threat or attempt toi, destroy their property, immediately upon acquiring .such knowledge, or that they did not have such knowledge until the property was injured; (2) They failed to prove that they brought their action within three months after the damages were sustained. From anything that appeared on the trial these plaintiffs may have had knowledge of the contemplated attack sometime prior thereto; and, if they did and failed to disclose it to the sheriff of the county, then, under the wording of the statute, they were not entitled to recover. The other ground named is equally fatal to a recovery — the provisions of the statute as to bringing the action within three months after the damages are sustained is connected with and made a part of the other requirements of the section; it is a condition precedent to a recovery.

For these reasons I think the motion must be granted.

Motion granted.