
    Theodore W. Stemmler and Franklin A. Stemmler, Respondents, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
    
      Amendment of a pleading—rule as to laches in the case of a municipal corporation — condition imposed.
    
    The rule that an amendment of a pleading will not he allowed where the moving party has heen guilty of laches will not be so strictly applied in the case of a - municipal corporation as in the case of an individual.
    Where the only hardship involved in allowing the city of New York to amend an answer interposed by it wag the consequent delay of the trial, the court considered that the amendment should be allowed upon the defendant stipulating to move for a preference under subdivision 2 of section 791 of the Code of Civil Procedure.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the •office of the clerk of the county of Hew York on the 13th day of June, 1899, denying its motion for leave to serve an amended .answer.
    
      Theodore Connoly, for the appellant.
    
      Delos McCurdy, for the respondents.
   O’Brien, J.:

The rule which ordinarily prevails, that an amendment of a pleading will not be allowed where there has been laches 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 laches in asserting them. Thus, in United States v. Kirkpatrick (9 Wheat. 720, 735), Story, J., says: “ The general ■principle is that laches 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 laches can be applied to its transactions.”

These words, though used in the case of the nation, where governmental functions are conducted of necessity 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. The Mayor (1 Abb. [N. S.] 206, 211) 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 be applied to public functionaries representing parties who are made liable for1 acts or omissions of which they are ignorant.” (See, also, Seaver v. Mayor, 7 Hun, 331.) And in Lunney v. Mayor (14 Wkly. Dig. 140) the rule as to laches 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 be 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 seriotis embarrassment to plavntñff'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 of laches as applied to governmental bodies, such as municipal corporations; 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 laches should 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 reiile 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 subdivision 2, section 791 of the Code of Civil Procedure.

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.

Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.

Order reversed, without costs, and motion granted on the conditions stated in opinion.  