Hill v. Board of Supervisors , 60 N.Y. Sup. Ct. 194 ( 1889 )

Landon, J.

Chapter 428, Laws 1855, under which this action is brought, provides for a recovery when property “shall be destroyed or injured in consequence of any mob or riot.” It also provides that no persons shall recover if it shall appear that such destruction or injury “was occasioned, or in any manner aided, sanctioned, or permitted, by the carelessness or negligence of such person. ” The three persons who developed into rioters did so in the plaintiff’s hotel, andafter her servants (she being a licensed vendor) had freely supplied them with intoxicating drinks. Possibly they assembled there with evil intent. If they did, the liquor they received at the plaintiff’s bar presumably fortified that intent. If they assembled there for purely social enjoyment, the liquor presumably developed their destructive propensities. In either case the plaintiff, by her servants in charge, was to some extent blamable. The case of Paladino v. Board, 47 Hun, 337, seems to us to have been correctly decided, and is decisive against the plaintiff’s recovery. The suggestion is made that the plaintiff’s servants were induced to sell the rioters liquor through fear. The plaintiff retailed liquor for profit, and her servants accepted these persons as customers, and drank with them. The remark that they came to kill the plaintiff does not appear to have excited alarm. The plaintiff cites Ely v. Supervisors, 36 N. Y. 297. There certain good people, becoming indignant over the disorderly, licentious, and criminal conduct of people who made a bawdy-house their rendezvous, tore it down. The court held that the bad reputation of the house and the bad conduct of its frequenters were not the proximate cause of its destruction. . The good people were misdirected, not through the agency of the proprietor of the house. He had nothing in common with them. His bad conduct could only lawfully lead them to seek lawful redress, and in no sense could he be held to have invited lawless violence. The case would have more resemblance to this if the patrons of the house had in their orgies torn it down. He who furnishes liquor to him whom the liquor infuriates is, in the cases mentioned in the civil damage act, liable for the consequences. In the case at bar it is only necessary to hold that to him the county is not an indemnitor against the consequences. Besides, we think this action is barred by the fifth section of the act. It provides that “no action shall be maintained under the provisions of this act, unless the same shall be brought within three months after the loss or injury.” This action was not brought within three months. An action was brought within three months in the county court, but was dismissed because the court had no jurisdiction. The plaintiff contends that section 405, Code Civil Proc., gives the plaintiff one year after the termination of the action in the county court in which to bring this action. But the statute of 1855 fixes the limitation-of three months. Section 405, Code Civil Proc., is, in chapter 4 thereof, entitled “Limitation of the Time of Enforcing a Civil Bemedy, ” and section 414 excepts from the provisions of the chapter “a case where a different limitation is prescribed by law.” Hammond v. Shepard, 3 N. Y. Supp. 349. The judgment must be reversed, a new trial granted, costs to abide the event.

All concur.

Learned, P. J., and Ingalls, J., concur.