Audley v. Townsend , 96 N.Y.S. 439 ( 1905 )

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.