I think that this case is within the reasoning and the rule of Duryea v. Mayor, etc., of New York (10 Daly, 300; affd., 100 N. Y. 625). In the afternoon of election day, 1901, a crowd varying at different times from" eight to thirty, made up of “ young fellows, men, a lot of boys,” with an axe, a crowbar, a rope and sticks, partially demolished an unoccupied and somewhat dilapidated frame" . tenement in the borough of Brooklyn. As one or another would tear away a window sill, a railing, a part of the stairs or the like, he would carry it off and then return. The police were notified at about four-fifty p. m., and officers were at once sent to the scene. ■At the appearance of an officer the crowd broke, scattered and ran away. One lad of eleven years old was arrested.
Whatever mischief the crowd may have attempted or accomplished, it seems to me like unto that done in Duryea]s Case (supra), and that the agency was not a mob or a riot within the contemplation of the statute* as interpreted and as applied in that judgment. The liability of the city did not exist at common law, and is not based upon contract, but is purely statutory.. (Dillon Mun. Corp. [4th ed.] § 959; Jones Neg. Hun. Corp. § 28; Louisiana v. Mayor of New Orleans, 109 .U. S. 285.) In the case cited, Field, J., referring to municipal corporations, says: “They are invested with authority to establish a police to guard against disturbance; and it is their duty to exercise their authority so as to prevent violence from any cause, and particularly from mobs and riotous assemblages. It has, therefore, been generally considered as a just burden cast upon *60them to require them to make good any loss sustained from the acts of such assemblages which they should, have repressed.’’ In County of Allegheny v. Gibson (90 Penn. St. 419), in which this, question is most elaborately discussed,, Paxson,. J.., says that the liability is “ based upon the theory that with proper vigilance tlie act might and ought to have been prevented.” It seems to me that" we go too-far if we hold that such acts -as those in Purged s case and in the case at bar were those which a mhnicipality should have prevented by proper -vigilance. Theré is not the. Slightest proof that the city had any notice of any such act or of any threat ■thereof, except that given while the demolition was in progress, or that it had any reason -to apprehend that any attempt would be made to injure these premises beyond the usual proclivity of the younger generation to seek fuel for the.bonfires of election night.
• The acts done were not, in my opinion, those of a mob, or the result of a riot. They were acts of malicious mischief, more or less concerted, done by stealth, inasmuch as the appearance óf a single . officer was sufficient to disperse the assembly.- The word “ mob ” in legal use is “ practically synonymous with riot, but the latter is the more correct term.” (2 Bouv. Law Diet. [Rawle’s Rev.] 429.) Greenleaf on Evidence (Vol. 3 [16th ,ed,], § .216) says, that ,to constitute a riot “it is necessary that'there be three or more persons tumultuously assembled of their own authority, with intent 'muttially to assist one another against all who shall oppose them, in the doing either of an unlawful act of a private nature, or of a lawful act in a -violent and tumultuous manner.” This is evidently taken from Hawkins Pleas of the Crown (Bk. 1 [2d Fol. ed.], chap. 65, § 1; Yol. 1 [8th ed.], p. 513, § 1). The italics are mine. (See, too, the definition of C. P. Daly, J., in People v. Judson, 11 Daly, 1, 17, and of Bellows, J., in State v. Russell, 45 N. H, 83, 84.) This element which I have indicated in italics (supra) is embraced in'the definition in "Words and Phrases Judicially Defined (p. 6240), with the citation- of many authorities. (See, too, Anderson Law Dict.) In Solomon v. City of Kingston (24 Hun, 562 ; affd., 96 N. Y. 651) the plaintiff hired two or three men to assist him in .protecting his .property; the crowd., became more boisterous and committed violence'u'po.n the chief engineer of tlie fire department,, who attempted to disperse" them by a stream of water. . The *61authorities cited in the General Term opinion are Hawkins Pleas of the Crown (Bk. 1, chap. 65, § 3*) and Albany Law Journal (Vol. 22, p. 403), where comment is made on Lycoming Fire Ins. Co. v. Schwenk (95 Penn. St. 89; 31 Leg. Int. 426), in which case there were elements which indicated that the offenders were ready to assist one another against all who should oppose them. I think that, as-was said in Marshall v. City of Buffalo (50 App. Div. 149,152), we must construe the statute in view of the common-law definition of riot. The definition in section 449 of the Penal Code is merely a legislative definition, which of course was not bound to embrace all of the elements of the offense as defined by the common law. (People v. Most, 128 N. Y. 108.)
I advise that the judgment and order be reversed, and that a new trial be granted, costs to abide the event.
Hirschberg, P. J., Bartlett, Woodward and High, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.
See Laws of 1855, chap. 428, revised in General Municipal Law (Laws of 1892, chap. 685), § 21.— [Rep.
See Bk. 1 (2d Fol ed.), chap. 65, § 3; Vol. 1 (8th ed.), p. 514, § 3.—[Rep.