#### Angus Ross, plaintiff and appellant, *vs.*The Mayor, &c. of the City of New York, defendants and respondents.

1. It is not necessary, in an action against one of the cities of this state, to recover damages for the destruction of property therein by fire, during the existence of a riot, in order to make such city liable therefor, to establish the absolute impossibility of the occurrence of the fire unless by the agency of the rioters. It is enough to establish, by circumstantial evidence, the probability of the origination of such fire by the rioters, so great as to render that of its having originated in any other way, on any ordinary principles of experience and reasoning, so remote and improbable as to make it morally, even if not physically, impossible.

2. Where circumstantial evidence, however slight, so brings a case within such principle of law as to require its submission to a jury, a nonsuit should not be granted.

3. Although, in such an action, there may be no direct evidence that the premises were set on fire by a mob, and the plaintiff seeks to maintain his action solely by force of circumstantial evidence, yet inasmuch as the tendency of the facts proved, to raise the presumption that the fire was the act of the rioters, depends entirely upon natural presumptions to be derived from the circumstances of the *50case, by the application of the *common experience of*mankind, based upon the natural capability of such facts to generate conviction in the mind, it is proper that the case should be submitted to the jury.

4. The mere denial of a motion for a nonsnit does not necessarily imply that the plaintiff is entitled to a verdict, upon the proof as it stands; but may, and most frequently does, establish, simply, that the evidence adduced is of such character as to require the decision of the questions of fact involved by a jury. (Per Jones, J.) " .

Before Monem, Gabvin and Jones, JJ.)

Heard February 15,1860;

decided March 12,1866.

This action is brought by the plaintiffs to recover damages for the destruction, during the riot of July, 1863, of certain property belonging to him.

The plaintiff alleges, that the destruction in question occurred in consequence of such riot. It appears that on the night of July 13,1863, a fire broke out in the premises adjoining the plaintiff’s, which spreading into the plaintiff’s premises occasioned the destruction complained of.

There was no direct evidence that the premises were set on fire by any mob, or tumultuous or riotous assemblage. The plaintiff seeks to maintain his action by circumstantial evidence. After the plaintiff had rested, the defendants moved for a nonsuit, which was granted ; and exceptions taken. The court ordered the exceptions to be heard' at the general term, in the first instance.

*Geo. W. Parsons,*for the plaintiff, appellant.

I. It must be conceded that the plaintiff’s case rests mainly upon circumstantial evidence, as no witness swears that he saw the rioters actually apply the torch to the premises. But it is insisted that men have been justly hanged on circumstantial testimony less conclusive than that before the court.

1. The error into which the learned judge who presided at the trial seems to have fallen, was in treating the case as if the .law required positive proof that the premises were fired by rioters engaged in a loud and boisterous assault. This seems the most favorable construction to be put upon his various rulings, and the language used in his final decision,

*512. This was an error in the construction of the law, which says : “ Whenever any building, or other real or personal property, shall be destroyed or injured in *consequence*of any mob or riot,” the party injured shall recover “ damages sustained by *reason thereof.”*

3. The question was, would the jury have been warranted, by the evidence, in finding the fact that these premises were destroyed in *consequence*of the mobs or riots which prevailed so extensively in that immediate vicinity all night P

4. If the court would not interfere to set aside such a verdict, then it was error not to submit the evidence to the jury.

II. A riot is defined by one learned author (Spelman) to be *“*the assembling of three or more persons against the public peace, and their unlawful áction thereupon.” An illustration is given in 7 *Rich. (S. C.) R. p.*5, *(The State*v. *Alexander:) “*Several persons acting in concert in the perpetration of an offense, such as going to the prosecutor’s stable and shaving his horse’s tail.” See also *The State*v. *Straw,*(33 *Maine,*554,) *“*Where only two persons were actually engaged in pulling down a house, and one other stood by looking on ; *held a riot.”*(1 *Russell on Crimes,*266, *Am. ed.*1850, *and notes.)*

1. Now, here was a fire shown to have been committed by incendiaries, at a time of the night when, in that neighborhood, in ordinary times, no one was stirring ; and yet immediately on the breaking out of the fire a dozen people, composed of the class chiefly engaged in the riots, are found on the spot, not to assist in putting out the fire, not mere idle spectators, but threatening to cut the hose of the fire companies if they should serve to extinguish the fire, and only deterred from this act of mob violence by the superior numbers and resoluteness of the firemen.

2. Surely here was a mob, and a riotous demonstration, and the circumstances would warrant a jury in finding'that this party fired the premises, and then waited to see their work completed.

III. There was more than one mob and riotous assemblage that night. Different and numerous bands of rioters were at *52their work of destruction all over the upper part of the city *especially;*so much so, that, on the following day the governor proclaimed the city *“*to he in a state of insurrection.’*

1. It appears that members of the mobs instigated various assaults to wreak personal vengeance, and such may have been the fact in this case ; but it is submitted that, as to the latter, *(a.)*there is no evidence of it; on the contrary, the assault seems to have been caused by the fact of the employment by Baker, Wells & Co. of negroes, the common objects of mob vengeance at that time; and *(b.)*such a fact does not take from the acts their quality of riotous acts.

2. But it is confidently urged that the proof connects the perpetrators of this incendiarism with a portion- at least of the party who were first engaged in the hanging of the negro in Clarkson street, and subsequently in the assault on negroes in premises adjoining Dale’s, and on Dale’s house.

IV. It is an elementary principle of law, that “ if the circumstantial evidence be such ás to afford a fair and reasonable presumption of the fact to be tried, it is to be received and left to the consideration of the jury, to whom alone it belongs to determine npon the' precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue.” (1 *Phil, on Ev.*612, *4th ed.)*' And the same authority holds that “ in civil cases where civil rights are ascertained, a less degree of probability may be safely adopted as a ground of judgment, than in criminal cases, which affect life and liberty.” *(Id.*p, 614.)

1. These rules have been illustrated in many cases.' *(See Young*v. *Silkwood,*11 *Ill. Rep.*36, *and*3 *Graham & Waterman on New Trials,*1840; *State*v. *Scates,*3 *Strobh.*106; *Sheldon*v. *Hudson River R. R. Co.,*14 *N. Y. Rep.*218; *Mondum*v. *The Commonwealth, 6 Rand. Va. Rep.*704, 713*; State of Conn.*v. *Watkins,*9 *Conn. Rep.*53; *Wright*v. *Court and others,*2 *Carr. & P.*232; *Janvrin*v. *Scammore,*9 *Foster, N, H.,*280; *Wilson*v. *Clark,*27 *Miss.*270; *Jones*v. *53*Letcher,*13 *B. Monroe, 363; Fitzwater*v. *Stout,*16 *Penn. 4 Harris,*22.)

Y. Judged by the foregoing rules, the learned justice was not only in error in taking the case as it stood from the jury, but there was error in ruling out the testimony offered.

1. Even if the evidence sought to be introduced did not specifically prove the point in issue, it tended towards it, and constituted connecting links, and its weight was for the jury to determine. (2 *Graham & Waterman on New Trials, p.*665.)

2. Says a learned authority, “ The force of circumstances of a conclusive nature may be greatly confirmed by a combination with other independent circumstances, though the latter be, in themselves, of an imperfect snd inconclusive character.” (1 *Phil. Ev.*416, *and note.)*And Starkie holds that a combination of imperfect proofs may be introduced, even in criminal cases. (3 *Starkie’s Ev.*495, 496.)

3. At least, in the language of some of the authorities, if they do not amount to positive proof, they serve to illustrate the point proposed to be proved.

4. The same kind of evidence was received in the case of Lord George Gordon. (21 *Howell’s St. Trials,*542. *See also*15 *How. St. Trials,*552, *Trial of Dammaree; Rex*v. *Hunt,*3 *Barn. & Ald.*566*; North*v. *Miles,*1 *Camp.*389; *Bowsher*v. *Callery, id.*391.) And in *Wright*v. *Court,*(2 *Carr. & P., supra,)*where three were jointly prosecuted for false imprisonment, and the declarations of one of them made weeks after the act in the absence of the other two, were received. *(Powell*v. *Hodgetts, id. p.*432. *State*v. *Simons, 4 Strobhart, S. C. Rep.*266. *Glory*v. *The State,*8 *Eng.*13. *Ark. Rep.*236.)

*Richard O’ Gorman,*for the defendants, (respondents.)

I. The liability of the defendants is dependent, in the first instance, upon the fact of the loss or damage being occasioned' by a mob or riot. (3 *R. S.*874, *5th ed.)*

1. A riot, as described in the boobs, is where *three or more**54*persons actually do an unlawful act*of violence. (4 *Black. Com.*146.) .

2. A mob is the *unlawful assemblage and violence*of a number of persons. *(Bouvier’s Laiv*Dictionary.)

3. To sustain his claim under the statute, the plaintiff must not only show the fact of a riot or mob, but that his loss was occasioned *thereby;*and this he entirely failed to establish on the trial.

4. The riotous proceedings spoken of, and the disorderly persons seen, were a long distance from the plaintiff’s property,

• and occurred and were seen many hours prior to the fire, by which the plaintiff suffered his loss.

5. There is no certainty as to the origin of the fire; and, from all that can be gathered from the case, it may have been accidental.

II. If the city is liable at all, it can only be for the actual loss which the plaintiff sustained. The amount of such loss, if any, is difficult to fix, inasmuch as the plaintiff himself testifies that *“ he guessed out”*the amount he supposed due him.

III. The eourt properly dismissed the plaintiff’s complaint, he having not only failed to establish the actual value of his property, but that his loss, whatever it may have been, grew out of, or was occasioned by a mob or riot. The plaintiff’s counsel made no request of the court to submit the case to the jury. His opposition to the motion on the part of the defendants, that the complaint should be dismissed, did not amount to such a request. Without such request of the court, *expressly*and *specifically*made, there can be no available exception to the ruling of the court. *(Bidwell*v. *Lament,*17 *How. Pr.*357. *Terry*v. *Bonesteel,*25 *id.*422.)

IY. The statute upon which this action is founded does not *specifically*fix the liability upon either the city or county of Hew York, but leaves it in the alternative, and, being a penal statute, is defective in that respect.

By the Court,

Jones, J.

Circumstantial evidence is of two kinds, namely: *certain,*or that from which the conclu*55sion in question *necessarily*follows ; and *uncertain,*or that from which the conclusion does not necessarily follow, but is *probable*only, and is obtained by a process of reasoning. (1 *Greenl. Ev.*§ 13, *a.)*Again : when the known and ascertained facts and circumstances surrounding and accompanying the disputed fact so coincide and agree with the hypothesis that the disputed fact is true, as to render the truth of any other hypothesis, bn the principles of reasoning and exeperience, exceedingly remote and improbable and morally, though not absolutely and metaphysically, impossible, the hypothesis is established as morally true. ( 1 *Stark. Ev.*561.) Again : presumptions of fact, usually treated as comprising the second general head of presumptive evidence, are to be judged.by the common and received tests of the truth of propositions and the validity of arguments. They depend on their own natural force and efficacy in generating belief or conviction in the mind as derived from their connection with the subject matter, which are shown by experience, irrespective of any legal relations. They are merely natural presumptions derived wholly and directly from the circumstances of the particular case by means of the common experience of mankind, without the aid or control of any rules of law whatever. (1 *Greenl. Ev.*§ 44.)

Applying these general principles to the evidence, I think the plaintiff was improperly nonsuited.

It clearly appeared in the evidence that there was an extensive riot in the city, which the city authorities were for some days unable to cope with. It also appeared that the riot was rampant in the particular section of the city where this fire occurred, and acts of rioting occurred within a few blocks of where the fire took place. The evidence clearly showed that in this section of the city the chief demonstration of the rioters was upon negroes and their houses. The evidence also tended to show that the establishments of those employing negroes were especial objects of attack by rioters, although the evidence in this respect does not go so far as perhaps it might. There was also evidence of threats to burn this particular establish*56ment where the fire occurred. Threats had been made in the afternoon and evening to burn the premises. About 11 o’clock of the evening a riotous demonstration was made on 613 Greenwich street, in the course of which one Tom Brennan said Baker had negroes, and proposed to go down there; then the mob moved off; they returned at 1 o’clock ; inquiry was made for matches, and shortly after the fire broke out.

When the first hose company reached the scene of the fire there were ten or twelve men standing near the fire, from some of whom came expressions indicative of a desire to cut the hose so as to prevent the extinction of the flames. One of the firemen testifies that it is an uncommon thing for such a crowd of men to be about at the breaking out of a fire in such a neighborhood, at that time of night. And another fireman testifies he apprehended no danger from the remarks about cutting the hose, judging from the party they had (25) and the small party of the others (12.) The evidence clearly tended to show that the premises had been set on fire by some party unknown.

Under the principles of law above laid down, it is not necessary that the facts and circumstances should go to the extent of showing it to be absolutely impossible for the fire to have occurred without the agency of rioters. If that was so, there could be no such distinction between the two classes of circumstantial evidence as is above set forth.

It is sufficient if the facts and circumstances so coincide with the hypothesis that the premises were fired by rioters, as to render the truth of an hypothesis that they were fired in any other way, on the principles of reasoning and experience, exceedingly remote and improbable, and morally though not absolutely impossible.

The facts and circumstances of this case as above stated tend to bring the case within this principle of law last laid down, sufficiently to require a submission of the case to the jury under the rule that where there is any evidence in support of the plaintiff’s case, however slight, a nonsuit should not be granted,

*57But again, as the force and effect of the facts above stated in raising and inducing the presumption that the fire was the act of rioters, depends entirely upon the natural presumptions to be derived wholly and directly from the circumstances of this case by means of the *common experience of mankind,*and upon the natural force and efficacy of the facts and circumstances generating belief or conviction-in the mind, it is eminently proper that this case should' have been submitted to the jury. Of course these remarks do not apply where the facts and circumstances fall far short of proving or tending to prove the fact in dispute; but when they do tend to prove such fact, although very slightly, it is advisable and expedient and I think necessary, that the case should go to the jury.

The denial of a motion for a nonsuit does not necessarily imply that the plaintiff is entitled to a verdict, upon the proof as it stands, but may, and often times does, assert simply that the evidence adduced is of such character as to cause the decision of the questions of fact involved to fall within the province of the jury.

Take, for instance, an action of assault and battery where one of the plaintiff's witnesses proves an unjustifiable assault, and the other proves the assault, but also proves that it was justifiable. Here the court would be obliged to refuse a non-suit, and yet the jury might well give credence to the witness who proved the assault to be justified, and return a verdict for the defendant. *(Labar*v. Koplin, 4 *Comst.*547.)

It is intended here only to decide that the evidence was of such a character as to require its submission to the jury for its determination thereon, and not in any way to intimate what the verdict of the jury should be.

Exceptions sustained, and new trial granted ; costs to the plaintiff to abide the event.