#### George Greer, plaintiff and respondent, *vs.*The Mayor, Aldermen and Commonalty of the City of New York, defendants and appellants.

*1.*In an action against a municipal corporation, by a tenant for life of land having buildings thereon, to recover damages for injury to the buildings by a mob, it is erroneous, to estimate the value of the plaintiff’s estate therein, by taking the interest upon the pecuniary value of the whole land and premises as income, and multiplying such interest by the number of years, which, according to annuity tables, would be the probable duration of the plaintiff’s life, without making any deduction for taxes, repairs or insurance, or any rebate of interest for present value, of the annual income thus estimated.

2. Where, through inadvertence, or excusable neglect or mistake of counsel, a case is permitted to go to the jury upon such an erroneous rule of damages, the court will grant relief, by giving such municipal body an opportunity to procure a correction of the error, even after the denial of a motion for a new trial, and the entry of judgment, if the neglect to apply at an earlier day is sufficiently excused.

3. The standard of measure of neglect, applied to cases against individuals for their own acts or neglect for which they are themselves responsible, is not to be applied to public functionaries representing parties who are made liable for acts or omissions, which they are, or may be wholly ignorant of, and helpless to prevent.

(Before Mohem,, J. at special term,

April, 1866.)

This was a motion by the defendants to set aside, vacate or open the judgment recovered by the plaintiff, in this action, and for a new trial; or that the defendants be permitted to renew their motion for a new trial upon the judge’s minutes, and for a re-settlemént of the case prepared for the appeal, by inserting therein the evidence given on the trial, and for a re-argument thereof. The facts fully appear in the opinion of the court.

*Richard O’Gorman,*(counsel to the corporation,) for the motion.

*O. F. Sanford*and *L. B. Woodruff,*opposed.

*676Monell, J.

Two actions were brought against the corporation of the city of New York to recover damages for injury to a building on the southeast corner of Broadway and Twenty-ninth street, known as No. 1192 Broadway. In July, 1863, a mob of rioters attacked the building, set it on fire, and it was totally destroyed. One of such actions was brought by the plaintiff, to recover for the injury to his estate in the premises as tenant by the curtesy *initiate,*and the other of such actions was brought by Ann Greer, the wife of the plaintiff, to recover for the injury to her estate as owner of the fee. The plaintiff's action was tiled by a justice of this court and a jury, and resulted in an assessment of the injury to the plaintiff's estate at $20,520, for which sum, with interest, he ‘.obtained a verdict. A motion was made, upon the justice’s minutes, for a new trial, which was denied. Judgment was thereupon entered, and the defendants appealed to the general term of this court, from both the judgments and the order.

The case made by the defendants for the purpose of presenting the questions of fact'or law to be reviewed by the general term, contained no part of the evidence given on the -trial, and only a single exception, namely, to the allowance of interest. Certain facts were said to have been established, viz. the nature of the plaintiff’s estate ¿ the destruction of the buildings, and the value in money of the injury to the plaintiff’s life estate; but no evidence was furnished to the court to enable it to determine whether the plaintiff’s damages were ascertained upon correct principles, There being no evidence to review, and the only exceptions taken'being considered wholly untenable, the court affirmed the judgment and order. *(See ante,*406.).

The action brought by Ann Greer was subsequently tried by another justice of this court, without a jury. Proof was adduced which established the whole value of the property destroyed at and not exceeding $37,400. The age of George Greer, her husband, was ascertained to be sixty-nine. The justice thereupon computed the value of his life estate, upon the principle applicable to life annuities, and deducted such value from the gross value of the property destroyed, and gave *677judgment in favor of Ann Greer for the remainder. In ascertaining the value of the life estate, the justice computed the interest upon the whole value, *{i. e.*§37,400,) at six per cent, and multiplied the interest by the number of years’ purchase furnished by the Carlisle annuity tables. Such computation was made pursuant to the directions contained in the 84th rule of the court, prescribing the mode of computation in such cases. The value of Ann Greer’s estate, as the owner of the fee, as thus established, was §23,794. Taking, however, the sum of §20,520, recovered by George Greer, as the value of his life estate, and the sum of §23,794, recovered by Ann Greer, as the value of her estate, we have an aggregate of §44,314, or §6914 more than the entire and highest proven value of the whole property destroyed.

A motion is now made to set aside, vacate or open the judgment recovered in favor of George Greer, and for a new trial; or that the defendants be permitted to renew their motion for a new trial, upon the minutes of the court, and for a re-settlement of the case prepared for the appeal, by inserting therein the evidence given on the trial, and for a re-argument thereof.

Upon this motion it now appears that considerable evidence was given, on the trial ■ of the George Greer suit, which was necessary to enable the jury to ascertain the value of his life estate. And it further appears that the principle adopted for ascertaining such value was by proof of the present value of the rents and profits of the premises, for one year, and multiplying such value by the number of years which, by the annuity tables, would be the probable duration of the plaintiff's life. Ko deduction appears to have been made for taxes, repairs or insurance, the two former of which are chargeable upon the life tenant, nor was there any deduction'or rebate of interest upon the annual rental thus, in effect, paid in advance for the ensuing six or seven years. This motion is' now made upon the ground that, through mistake, inadvertence, error or otherwise, the plaintiff has recovered at least §6914 more than upon any principle properly applicable to the facts of the case, he is entitled to recover.

*678I do not entertain a doubt that the plaintiff's recovery was too large, and I ■ am, therefore, clearly of opinion, that if no well settled principle of law or of the practice of the court be violated, the defendants ought to have an opportunity to correct the error! The power to do so is given, in express terms, by the 174th section of the Code, which provides that the court in its discretion, and upon such terms as shall be just, may relieve a party from a judgment, order or other proceeding taken against him, “through his mistake, inadvertence, surprise or excusable neglect.” I cannot persuade myself; that the mode .of ascertaining the damages in this case was adopted by the court, or assented to by the counsel for the corporation, upon a full and careful examination of the question. Indeed it does not appear that any question as to the correctness of the rule was raised on the trial, and it seems to have been tacitly assumed that it was the correct rule. I am, therefore, led to believe that through inadvertence, or perhaps, excusable neglect or mistake of the counsel for the defendants, the case was allowed to go to the jury upon what I deem to have been a clearly erroneous rule of damages.

Under such circumstances, I can have no hesitation in opening the case for a re-investigation, if the inadvertence or neglect has been excused. Great laches in seeking relief from mistakes are generally a complete answer to a motion for such relief; and courts will always, and very properly scrutinize closely any attempt to avoid consequences which a party has brought upon himself by his own act; and great delay in applying for relief is always a circumstance of suspicion, and will incline the mind to doubt the good faith of the application. But where there is no reasonable ground to question the integrity of the application, and where no principle of law will be invaded and the neglect is excused, there should be no reluctance to afford relief.

The action was defended by the counsel to the corporation, who is the law officer of the city. The answer of the defendants put in issue all the allegations of the plaintiff's complaint. The action was tried at the May term, in 1865, and *679evidence, to establish the plaintiff’s cause of action and the basis upon which the jury were to estimate the plaintiff’s damages, given, and the jury were instructed to adopt the rule of damages claimed by the plaintiff, and assented to by the corporation counsel as correct. The case was heard on appeal in the succeeding October general term, and decided at the November general term. The incumbent of the office of counsel to the corporation during these proceedings, was succeeded by the present counsel, on the 1st of January last, and pending suits and proceedings against the corporation at that time transferred to him. There is no evidence that the error now complained of was discovered by the late corporation counsel, who evidently was not aware that any doubts could be entertained of the correctness of the rule adopted, to which he yielded on the trial, no doubt believing it to be correct. The present corporation counsel, when he entered upon his office, found a mass of unfinished litigation, which, with other business constantly accumulating, rendered it impossible to investigate at once all the cases in his office. Yet this motion is made in a little over two months from his assumption of the office. The counsel to the corporation is an independent department of the corporate government, and represents the inhabitants of the county. He has charge of, and is responsible for, the conduct of all suits and proceedings against the city. To him are confided interests of great magnitude and importance. It is his duty, independently of any other department, to defend the city, and the taxable inhabitants thereof against all actions which, in his judgment, cannot be sustained. And it is also his duty, whenever in his judgment the interests of the city and its taxable inhabitants require it, to institute lawful proceedings f'o relieve them from any improper burden. That duty is none the less imperative whether the burden was imposed through mistake of himself, his predecessor in office, or any other department of the city government.

The measure of neglect which is applied to cases against individuals for their own acts or neglect for which they are *680themselves responsible, ought not to be applied to public functionaries representing parties, who are made liable for acts or omissions of which they are ignorant. The principle of the maxim, *Nullum temjpus occurrif regi,*in a modified form, is applicable to such a case, namely, that the community, or its representatives, cannot always be supposed to be aware of an unjust invasion of its rights. The corporation of New York has no entire control over its- counsel, he being an elective officer, so as to direct or change him ; and unless the courts can afford them protection or reliefj when brought to their notice, serious losses might fall upon the city treasury by the neglect or delinquency of an irresponsible official.

The several adjudications in this case, which it was so strongly urged should be regarded as concluding the corporation, upon this motion, do not afford, it seems to me, a sufficient reason for withholding the relief they now seek to obtain. I believe an errror was committed on the trial of the action which should not go uncorrected, if the court have power to correct it. And the plaintiff should not object, as I believe he will not, to have his judgment reduced, if he has recovered more than the law awards Mm..

I am, therefore; of opinion that so much of the motion as is necessary to give the defendants the relief they seek should be granted, on terms. The neglect to apply at an earlier day is to my mind sufficiently excused, and the defendants should not be injuriously prejudiced by the delay of a public official, more especially as the plaintiff cannot be injured, except by a short prolongation of his action.

I do not intend, and I mean it shall be so understood, that this decision shall be regarded as a precedent, or as affording any encouragement to relaxing proper attention to the defense of suits against the corporation. In conducting the large law business devolving upon the counsel to the corporation, mistakes and errors are almost inevitable, and more or less delay cannot, probably, be avoided.; but. only in clear cases of excusable negligence, or palpable error, will the courts feel inclined to relieve the corporation from the consequences of mistakes *681of the city officials. I have come to the conclusion, with much hesitation, however, that the order denying. the motion for a new trial, and the order affirming the same, should be set-aside, the case resettled, and a re-argument ordered. In no other way, without the consent of the plaintiff, can the error complained of be corrected.

An order may be entered that, unless the plaintiff, within twenty days from the entering and service of the order upon this decision, stipulates in writing to deduct from his judgment the sum of $6914 with interest from September 23, 1863, then upon payment by the defendants to the plaintiff, of the costs in the action, since the trial, including the costs of the appeal to the Court of Appeals, to be taxed, and of $10 costs of opposing this motion, the defendants have leave to re-settle the case and re-argue their motion for a new trial at the special *term;*that the order denying the motion for a new trial on the minutes of the justice, and the judgment affirming such order, be vacated and set aside ; and that until the decision of such motion, all proceedings on the judgment be stayed.