
    Henry Audley, Respondent, v. William H. Townsend, Jr., and Others, Appellants.
    Second Department,
    May 1, 1908.
    Pleading — complaint — amendment after verdict to conform to proof.
    A pleading cannot- be conformed to the proof where objection is taken in due time to the sufficiency of the pleading, or to the admission of evidence necessary to a recovery, made on the ground that it is inadmissible under the pleading.
    It is only where no objection is taken, or where the question is raised at the end of the case, evidence having’been received without objection, that the trial court may order the pleading amended to conform to the proof.
    Where a complaint did not state facts sufficient to constitute a cause of action in that a foreign law was not pleaded, and the defendants moved to dismiss and took exception to the admission of evidence of the statute, it is error after verdict and motion for a new trial to allow an amendment nunc pro tunc inserting an allegation of the foreign law.
    Woodward and Hooker, JJ., dissented.
    Appeal by the defendants, William H. Townsend, Jr., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Westchester on the 15th day of January, 1906, upon the verdict of a jury, also from an order entered in said clerk’s office on the 27th day of December, 1905, denying the defendants’ motion for a new trial made upon the minutes, and also from an order entered on the 29th day of December, 1905, allowing the plaintiff to amend the complaint.
    
      M. S. Guiterman, for the appellants.
    
      Thomas H. Rothwell, for the respondent.
   Rich, J.:

' The only question necessary to be considered in the disposition of this appeal is whether the learned justice who presided at' the trial had power, after verdict and motion for a new trial, to direct of his own motion an amendment of the complaint, nunc pro turne, making its allegations conform to the proofs upon the trial. The facts are briefly stated by the learned trial justice as follows: “The plaintiff was sheriff of Fond du Lac County, State of Wisconsin. The defendants were merchants in the State of Flew York, and sent to a firm of attorneys in Wisconsin a commercial claim against a manufacturing corporation in the plaintiff’s county for collection. The said attorneys brought an action on the said debt against the said corporation and obtained therein an attachment against its property. When the sheriff went to the place of business of the corporation to levy he was met by a claim of ownership by a third person. One of the attorneys for the plaintiffs (now these defendants) who had accompanied him told him in substance to make the levy and that the plaintiffs would stand by him and save him harmless. The claimant afterwards brought an action against the sheriff (this plaintiff) for damages for converting the chattels by his levy. He turned the summons and'complaint over to the said attorneys for the plaintiffs in the attachment action, and they defended it. Judgment was obtained against the sheriff, and the recovery in this action by him is for the amount of the said judgment and his fees and expenses in the attachment action, less the amount realized by him by the sale of the chattels levied on. The balance is less than the amount of the said judgment, and the verdict here is for that balance,” (49 Misc, Rep. 23.)

The amendment directed is stated in the order as follows: “That under the law of the State of Wisconsin an attorney at law representing a non-resident client has authority to direct a sheriff as to the manner in which he shall levy and goods which he shall seize under a warrant of attachment obtained by the attorney in an action brought by him on behalf of such client and that such attorney has authority to indemnify the sheriff on behalf of such clients against all damages and costs by reason of making such levy and that the action of such attorney in directing such levy or making an agreement on behalf of such clients to indemnify the sheriff against harm resulting therefrom, is binding upon such clients.” By the same order the answer was amended nuno pro tuno by the insertion of a denial of each of said allegations.

The learned trial justice states in his opinion denying the motion, for a new trial that the law of Wisconsin, upon which the liability of the defendants was predicated and under which the plaintiff herein has recovered, is different from the laws of the State of Blew York ; that the complaint did not allege the law of Wisconsin, and that it is the established law of this State that the laws of another State cannot be proved unless pleaded. From these statements of fact and law it is apparent that until the complaint was amended by direction and order of the court, it did not state facts sufficient to constitute a cause of action. In other words, the effect of the amendment was to place the plaintiff for the first time in a position where he was legally entitled to recover upon his alleged cause of action. Had the defendants permitted proof of the Wisconsin statutes to be made without objection the action of the trial court would have been justified, but the record shows that from the commencement of the trial the defendants were vigilant and insistent in their effort to prevent the introduction of this evidence, which was absolutely essential to a recovery against them. Counsel moved at the commencement of the trial to dismiss the complaint upon the ground that no cause of action was stated against the defendants, and excepted to the denial of his motion. Upon the examination of the Wisconsin attorneys every attempt to prove the laws of that State or the liability of the defendants thereunder was met by the objection that there was no allegation in the complaint of the law which, with its effect upon the defendants, was sought to be proven, because of which evidence thereof was incompetent and inadmissible and did not tend to prove any fact in issue in the action, and exceptions were in each instance taken to the rulings admitting such evidence. No request to amend the complaint was made, and the defendants had the right to rely upon their exception, the effect of which could not be destroyed and the defendants deprived of their benefit by an amendment to the complaint ordered by the court, without request, after verdict and motion for a new trial.

We concur in the rule which has become the settled law, that a pleading cannot be conformed to the proof when there is objection taken in due time to the sufficiency of the pleading, or to the admission of the evidence necessary to justify a recovery upon the ground that it is inadmissible under the pleadings ; that it is only when no objection is taken, or when at the end of the case, evidence having been received without objection, and the question is then raised, that the trial court is warranted in making an order amending the pleadings to conform to the proofs. (Rutty v. Consolidated Fruit Jar Co., 52 Hun, 492; Barnes v. Seligman, 55 id. 339; Beard v. Tilghman, 66 id. 12; National Bank of Deposit v. Rogers, 44 App. Div. 357; Bossert v. Poerschke, 51 id. 381; Page v. President, etc., D. & H. Canal Co., 76 id. 160; Bjorkegren v. Kirk, 53 Misc. Rep. 560.)

The judgment and orders appealed ■ from must be severally reversed and a new trial granted, costs to abide the event.

Jenks and Miller, JJ., concurred, Miller, J., being also of the opinion that the judgment against the sheriff was not binding upon the defendants; Woodward and Hooker, JJ., dissented.

Judgment and orders reversed and new trial granted, costs to abide the event.  