
    Emilie Riendeau, Resp't, v. Henry A. Vieu, Ex'r, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 16, 1892.)
    
    1. Pleading—Foreign law.
    In an action on a contract executed in Canada the complaint originally contained no allegationin respect to the law of Canada, but on the trial it was amended by alleging “ that the said contract was made, and subject to, and governed by, the laws of Lower Canada, * * * and that, under said law, the plaintiff is entitled to the relief hereinafter prayed for.” No testimony was offered to show whether the law was statutory or common, or what were its provisions. Held, that the omission to properly allege or prove the law was fatal to the judgment entered on a verdict for plaintiff.
    2. Same—Amendment.
    In such case, it is error to allow, on the trial, the amendment to the complaint in regard to the Canadian law; it should he done on motion at special term, and the defendant allowed to answer.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial in an action to recover the sum of £375, claimed under a contract of marriage alleged to have been entered into by the plaintiff and one Eustache Riendeau, in Canada, in the year 1846.
    
      0. Roremus, for app'lt;
    
      Richard O'Gorman (Robert Weil, of counsel), for resp’t.
   Yan Brunt, P. J.

This action was brought to recover the sum of £375, claimed to be due under an antenuptial contract, alleged to have been entered into between the plaintiff and one Eustache Riendeau, in Canada, in the year 1846. The validity and interpretation of the contract, therefore, depended upon the law of Canada. The complaint originally contained no allegation in respect to the law of Canada. That such allegation was necessary in order to permit proof of such foreign law seems to have been finally recognized by the plaintiff, who, upon the trial, moved to amend the complaint, and was allowed to so amend, against the objection of defendant, by alleging:

“ That said contract was made, and subject to, and governed by the law of Lower Canada, known as ‘ Contume de Paris/ and that it is governed by said law both as to validity, execution and interpretation, and the rights of the parties thereunder, and that under said law the plaintiff is entitled to the sum of £375, and to the relief hereinafter prayed for.”

This allegation was clearly insufficient, even if the court should have permitted so radical an amendment upon the trial. It was not alleging the law. It was not alleging what the law was, and then leaving it for the court to judge what the plaintiff was entitled to under it. But it was simply the allegation of a conclusion of the plaintiff’s right to recover, bringing it directly within the objection so pertinently pointed out in the case of Rothschild v. Rio Grande Western R. Co., 59 Hun, 454; 37 St. Rep., 44. And, furthermore, upon an inspection of § 942 of the Code, it appears that it may be necessary to allege whether the foreign law is a statute law, or unwritten or common law, because the modes of proof are different and distinct The evidence, in respect to the existence of the law, was equally objectionable. The witness determines as to whether the law is complied with, and not the court

He testifies as to what the objects of the contract were, and what the plaintiff was entitled to thereunder, and that he considers the contract has been made and executed according to the laws of Lower Canada at the date of the passing thereof. He does not state what the Canadian law is, and leave the court to judge as to whether it has been complied with. He does not state whether the Canadian, law is statutory or unwritten or common law, which was necessary in order that it might be ascertained whether his evidence, under any circumstances, could be competent or not. This error seems to have pervaded the whole case, and the witnesses upon the part of the plaintiff determined as to whether the plaintiff is to recover, and not the court and jury.

It is not necessary to discuss at length the various other objections presented upon the argument of this appeal, many of which are well taken, because the error to which attention is called permeates the whole case, and is fatal to the judgment which has been recovered. We think, also, that if the plaintiff is to be allowed to amend her complaint it should be done upon a proper motion made to the special term therefor, and the defendant allowed to answer. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

O’Brien and Barrett, JJ., concur.  