
    Henry Audley, Plaintiff, v. William H. Townsend et al., Defendants.
    (Supreme Court, Westchester Trial Term,
    December, 1905.)
    Pleading — Foreign statutes,— Amendment to conform to proof—• Allowed notwithstanding objection when proof was offered and exception to its admission.
    Although it is the established rule in this state that the law of another state cannot be proved unless pleaded, yet where the law of another state, though not pleaded, is proved over objection and exception, and where the pleadings had been regarded before the trial as raising the issue and it had been fully litigated by evidence taken on commission the complaint may be amended to conform to the proof.
    An attorney in Wisconsin, to whom a claim is sent from another state for collection, is authorized by the law of Wisconsin to indemnify the sheriff for his clients in order to induce him to make a levy, and where, in a suit upon a claim sent there from the state of New York, one of the plaintiff’s attorneys induces the sheriff to levy an attachment, vupon agreeing to indemnify him against the claim of ownership by a third person, plaintiffs are liable to the sheriff for the amount of a judgment obtained against him by the claimant for the conversion of the chattels levied upon, together with his fees and expenses in the attachment action, less the proceeds of sale of the chattels.
    Where the summons and complaint in the action for conversion was turned over to the attorneys for the plaintiffs in the attachment action, who defended, and the plaintiffs were informed by the sheriff that their attorneys had put in an answer, the 'plaintiffs had sufficient notice and the judgment against the sheriff in that action is res judicata upon the question of damages.
    Action by a sheriff to recover on an oral contract of indemnity. Verdict for the plaintiff. Motion to direct a verdict for the defendant reserved until after verdict; also motion on the minutes for a new trial..
    The plaintiff was sheriff of Fond du Lac county, state of Wisconsin. The defendants were merchants in the state of New 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.
    Thomas H. Rothwell, for plaintiff.
    Benj. F. Einstein, for defendants.
   Gaynor, J.:

1. The law of Wisconsin is, as proved on the trial, that in the case of debts sent from other states to attorneys in that state for collection, the attorney has the authority to indemnify the sheriff for his clients in order to induce him to levy (Clark v. Randall, 9 Wis. 135). The defendants were therefore indemnitors of the plaintiff.

The law is the contrary in this state (Welsh v. Cochran, 63 N. Y. 181), and the trouble is that the complaint does not allege the law of Wisconsin, which was proved under exception ; and whether correctly or not, it is the established rule in this state that the laws of another state cannot be proved unless pleaded (Monroe v. Douglass, 5 N. Y. 447; Schluter v. Bowery Savings Bank, 117 N. Y. 125; Berney v. Drexel, 33 Hun, 34; Savings Ass’n v. O’Brien, 51 Hun, 45; Rio Grande Western R. Co. v. Rothschild, 20 Civ. Pro. 197).

But the complaint can now be amended to conform to the proof. I am aware that there is a decision on appeal in another judicial department that such an amendment cannot destroy an exception already taken to the admission of evidence, which becomes admissible only by reason of the amendment; but we have no such decision in this judicial department, where the trial of a law suit is not reduced to a mere sharp game. The less said about such decisions the better. Courts sit to do justice, and I know of no rule of law or practice which, intelligently understood, stands the least in the way. Eine-tenths of our trouble is with court .made law, not with law made by the legislature.

The defendants cannot be in any way aggrieved by this amendment, for the law of Wisconsin proved was deemed an issue of fact on the pleadings before the trial by both sides and by this court, for the evidence to prove it was taken by commission. The defendants cannot claim surprise, nor do they.

2. The other question on the trial was whether the judgment obtained against -this plaintiff by the third party for damages for conversion is in this action res adjudicaba against the defendants. The plaintiff stood upon it as such, and gave no other evidence on the question of damages. Eo formal notice was given by the plaintiff to these defendants of the bringing of the conversion action against the plaintiff, and calling on them to defend it, which was the course to follow in order to make the judgment binding on them (Cornell v. Travelers Ins. Co., 175 N. Y. 253); but he turned the summons and complaint over to their attorneys in the attachment action, and they answered and defended; and he also wrote to these defendants informing them of the action, and that your attorneys ” have put in an answer. To this the defendants made no dissent, and their acquiescence was a waiver of such formal notice. Indeed, all that occurred was equivalent to such notice (Robbins v. City of Chicago, 4 Wall. 657). And inasmuch as the attorneys had the authority to make the indemnity agreement, and had charge of the entire matter, including it, I am inclined to say that notice to them was notice to these defendants.

The motion to direct a verdict for the defendants, and also the motion for a new trial on the minutes, are denied.  