Schiellein v. Board of Supervisors , 43 Barb. 490 ( 1865 )

By the Court,

J. F. Barnard, J,

The object of the notice required by the act “ to provide for compensating parties whose property may be destroyed in consequence of mobs or riots,” passed April 13, 1855, was for the purpose of protection only. The notice is given to the sheriff, who can exert the power of the county if necessary. It is made this officer’s duty to take all legal means to protect the property, and if he neglect or refuse he is made individually liable for the damages sustained by the person who shall have given him notice. It is not intended to restrict the action against a city or county to such as shall give notice to the sheriff, if such notice he useless for the purpose or protection. The statute must receive a reasonable and lib •eral construction.

[Kings General Term, February 8, 1865.

The refusal to charge that if the plaintiff could have given the notice to the sheriff after he left his premises and before they were destroyed by the mob, was right. It is not information to the sheriff, but protection from him which is to result from the notice.

The defendant further requested the court to charge that if the plaintiff, after leaving his premises and before they were fired, had time to give notice to the sheriff and the sheriff might by possibility or probability have arrived in time to prevent some portion of the injury, or arrest any of the rioters, the plaintiff could not recover. The court refused so to charge, and that is alleged as error. I think not. It is not the possibility or probability that a sheriff might arrive in time to save the smallest portion of the plaintiff's property or to arrest a rioter, that should destroy the plaintiff's claim against the county. The act should, I think, be construed so that if a party is informed of a threat and have time to notify the sheriff so "that he can take all legal means to protect the property, then the omission to give the notice is fatal; and this the judge charged fairly.

Judgment affirmed with costs.'

Lott, J. F. Barnard and Scrugham, Justices.