Stemmler v. Mayor of New York

The rule which ordinarily prevails that an amendment of a pleading will not be allowed where there has been loches or delay should not be so strictly applied in the case of a municipal corporation as in the case of an individual. So far has the rule been relaxed that cases can be found wherein it has been held that public interests are not to suffer by loches in asserting them. Thus, in U. S. v. Kirkpatrick, 9 Wheat. 720 , 735, 6 L. Ed. 199 , Story, J., says:

“The general principle is that loches is not imputable to the government, and this maxim is founded, not in the notion of extraordinary prerogative, but upon a great public policy. The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses if the doctrine of loches can be applied to its transactions.”

These words, though used in the case of the nation, where governmental functions are, of necessity, conducted on a larger plan than in the case of the state or municipality, have none the less been held true as to the latter. Thus, in Greer v. Mayor, etc., 1 Abb. Prac. (N. S.) 206, 210, the court said:

“The measure of neglect which is applied to cases against individuals for their own acts or neglect, for which they are themselves responsible, ought not to he applied to public functionaries representing parties who are made liable for acts or omissions of which they are ignorant.”

See, also, Seaver v. Mayor, etc., 7 Hun, 331 .

In Lunney v. Mayor, etc., 14 Wkly. Dig. 140 , the rule as to loches was more explicitly stated:

“That in an action against an individual or a private corporation this great delay between the service of the answer and application for leave to amend would present a very serious obstacle In the way of the success of the application; but in an action affecting public interests, which ordinarily does not stimulate that degree of earnest zeal and activity which is aroused in individuals affected by legal proceedings, the same considerations cannot he rigidly

applied. In such case It is the duty of the court to see that no substantial injustice shall be permitted. 7 Hun, 331 . The public interests are not to be jeopardized by mere delays of this nature, and, where that result can be avoided-without serious embarrassment to plaintiff’s rights, it should be done by .allowing proper amendments or corrections to the pleadings or proceedings.”

These cases state the rule concerning the doctrine óf lachesas applied to governmental bodies such as municipal corporations y and it appears that, while a city should be protected from injury ■ by mere delay, on the other hand, where injustice or great injury would result to the opposite parties, the general rule as to lachesshould be enforced. In the present instance the failure to include in the original answer the matter now sought to be introduced is to some extent explained, and the amendment should have been allowed unless manifestly unjust, or prejudicial to the plaintiff. The only hardship suggested by the learned judge below or pressed upon our consideration is the delay that would be entailed by compelling the plaintiff to renotice the case for trial, and refile a note of issue, and thus delay the trial for two years. Such delay can be avoided, however, by compelling the defendant to stipulate, as a condition of the amendment, to claim a preference under section 791, subd. 2, Code Civ. Proc.

The order accordingly should be reversed, without costs, and the motion granted, upon the condition that the city will stipulate that it will apply for a preference "of the trial, and pay all the costs of the action to date. . All concur.