App. Div.] Second Department, December, 1920. ant, the defendant had an equal right to prove her admissions to show that she was not telling the truth. (Mc Kane v. Howard, 202 N. Y. 181; Osterheld v. Star Co., supra; Gulerette v. Mc Kinley, 27 Hun, 320; Wandell v. Edwards, 25 id. 498; Bracy v. Kibbe, 31 Barb. 273; Crandall v. Barron, 57 Hun, 259; affd., 127 N. Y. 690; Allen v. Besecker, 55 Misc. Rep. 366; Watry v. Ferber, 18 Wis. 500; Mitchell v. Work, 13 R. I. 645.) 'If some of the things said of the plaintiff were shown to be true, their truth, if establishing misconduct, should be allowed to affect the amount of the damages, which, otherwise, the jurors would be minded to award. Damages given as a compensation should be precisely commensurate with the injury." (Gressman v. Morning Journal Assn., 197 N. Y. 474.) III. The appellant complains that the trial judge admitted evidence that during the time she lived with defendant she had eight separate abortions at defendant's request, each operation being attended with great pain. Plaintiff's counsel asserted that this was one of the elements of damage. The evidence was admitted over defendant's exception. Nothing was said in the complaint concerning abortions. I doubt the admissibility of the evidence. Commission of a felony can hardly be said to be the natural result of the injury alleged in the complaint. (Keefe v. Lee, 197 N. Y. 68.) And in addition the court over defendant's objections and exceptions allowed the plaintiff to testify that during the time she lived with defendant she told him she was very fond of children and asked him "if it would not be all right to let one of these operations- never mind one of these operations; to go on with it" so that she might have a child. And the court asking, "Q. What did he say to that? A. He said, 'No, go and have an operation performed. We don't want to have any children.'" By plaintiff's counsel: "Q. Were you willing to bear him children? A. Yes, sir." The learned court told the jury that in determining the amount to be awarded as actual damages they might consider "all the disappointments that came to her from the failure of marriage, as well as the blow to her affections." Aside from the fact that a desire on the part of a woman for illegitimate children is somewhat unusual, the admission of this evidence introduced a highly speculative element of damage. "It permitted the First Department, December, 1920. [Vol. 194. plaintiff to thrust into the trial an issue foreign and impertinent to those framed by the pleadings and without the scope of the cause of action." (Mc Kane v. Howard, supra, 187.) Because of the errors in the rulings referred to, I recommend that the judgment be reversed and a new trial granted. JENKS, P. J., RICH, PUTNAM and BLACKMAR, JJ., concur. Judgment and order reversed and new trial granted, with costs to abide the event. In the Matter of the Application for the Judicial Settlement of the Account of Proceedings of OLIVE B. DEIMEL, as Administratrix, etc., of SIMON DEIMEL, Deceased, Respondent. BELNORD REALTY COMPANY and MOREWOOD REALTY HOLDING COMPANY, Appellants. First Department, December 3, 1920. Executors and administrators accounting surcharging account with moneys collected from partner of intestate evidence showing that money did not belong to administratrix personally. On the judicial settlement of the accounts of an administratrix in which certain creditors sought to surcharge the account with moneys alleged to have been collected from a partner of the intestate, it was contended by the administratrix that she was a partner and that the intestate was merely acting as her representative. On all the evidence, held, that the intestate was the partner and that the moneys collected were due to the estate and not to the administratrix personally and that she should be surcharged therewith in her account. APPEAL by Belnord Realty Company and another from a decree of the Surrogate's Court of the county of New York, entered in the office of said Surrogate's Court on the 14th day of May, 1919, overruling objections to the account of the administratrix herein and judicially settling said account. Charles K. Carpenter of counsel [Daly, Hoyt & Mason, attorneys], for the appellants. Daniel J. Mooney, for the respondent. App. Div.] PER CURIAM: First Department, December, 1920. Certain creditors seek to surcharge the account of Olive B. Deimel, as administratrix of the goods, chattels and credits of Simon Deimel. After the death of the deceased she received $7,464 from one Hugh L. Collins, who, with the said Simon Deimel, had been acting as copartners in bookmaking in connection with the race tracks. We are satisfied that the moneys invested by Simon Deimel came from Olive B. Deimel. Her claim is that they were not borrowed by her husband from her to invest in his business, but that he was acting for her in the transaction, and she was, in fact, the partner of Hugh L. Collins. This appears from her own testimony and from the testimony of Charles L. Hoffman, her attorney, both interested parties. If proper objection had been made it is probable that her testimony would have been rejected, as testimony of a personal transaction with the deceased. (See Code Civ. Proc. § 829; Keller v. Stuck, 4 Redf. 294.) But against her testimony and that of Hoffman, her attorney, appears, first, the fact that Collins never knew that she had any interest in the business, except as a creditor of her husband to whom she had loaned money therefor. It is most unusual that this fact would not be known to Collins if existing. Second, in Exhibit A, of November 22, 1918, she signs a receipt to Hugh L. Collins for $7,429 in full payment and satisfaction of all cash collections or profits to date on said transactions with said Hugh L. Collins and Simon Deimel during his lifetime. The paper then recited an arrangement for a further division of further moneys and that forty-five per cent should go "to the estate of Simon Deimel." This was signed by Olive B. Deimel, individually and as administratrix, and in the presence of Charles L. Hoffman. Hoffman explains this receipt by saying that it was demanded by Collins to be in this form, and that he was afraid that if they stood upon their legal rights they could not collect their money. Again, in the petition for administration, Olive B. Deimel recited that the personal estate of her husband amounted to $7,500. This was a statement made soon after the death of her husband. These moneys from Collins were practically all of her husband's estate. This statement made by her while Mr. Hoffman was ber attorney is strong evidence against her present claim that First Department, December, 1920. [Vol. 194. she was in fact the partner and not a mere creditor of the partner. This court is of opinion that the contestants have presented the stronger proof and the account of the administratrix should be surcharged as claimed. The order should, therefore, be modified as herein directed and as so modified affirmed, with costs to the appellant payable out of the estate. Present CLARKE, P. J., LAUGHLIN, SMITH, PAGE and MERRELL, JJ. Order modified as directed in opinion and as so modified affirmed, with costs to appellant payable out of the estate. Settle order on notice. WILLIAM M. WATSON and Others, Copartners, Doing Business under the Firm Name and Style of WATSON & YOUELL, Appellants, v. UNIVERSAL TRANSPORTATION COMPANY, INC., Respondent. First Department, December 3, 1920. Pleadings — action on promissory note - bill of particulars as to consideration answer not raising issue of consideration. In an action on a promissory note in which the answer does not allege affirmatively that the instrument was without consideration, the defendant is not entitled to a bill of particulars as to the consideration. APPEAL by the plaintiffs, William M. Watson and others, copartners, etc., from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of August, 1920, as requires the plaintiffs to give a bill of particulars of the consideration of a negotiable instrument upon which the plaintiffs sue. Carroll G. Walter of counsel [Patterson, Eagle, Greenough & Day, attorneys], for the appellants. Lawrence E. Brown of counsel [Bullowa & Bullowa, attorneys], for the respondent. App. Div.] PER CURIAM: First Department, December, 1920. So much of this order as granted to the defendant the right to a bill of particulars from the plaintiffs of the consideration of the instrument sued upon must be reversed for the reason that the consideration of the instrument is not made an issue by the pleadings. Where the action is upon a negotiable instrument, in order to raise the issue of want of consideration the defendant must allege affirmatively that the instrument was without consideration. (See Abrahamson v. Steele, 176 App. Div. 865.) Not being able to question the consideration the defendant is not entitled to a bill of particulars in respect thereof. The order, so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the motion denied. Present CLARKE, P. J., DOWLING, SMITH, PAGE and GREENBAUM, JJ. Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and motion for bill of particulars of consideration denied. LILLIAN B. GELBMAN, Appellant, v. PHILIP GELBMAN, Respondent. First Department, December 3, 1920. Husband and wife - divorce adultery with mother-in-law evidence not inherently improbable affirmative finding that adultery not committed constituted error. In an action for divorce based on the adultery of the defendant with his mother-in-law, the plaintiff's mother, the evidence given by the son of the corespondent to the fact of adultery is not so inherently improbable as to be beyond belief. It was error for the court affirmatively to find that the defendant did not commit the adultery as charged in the complaint, since there was direct testimony to the adultery and there was no denial under oath by either the defendant or corespondent. DOWLING, J., dissents. APPEAL by the plaintiff, Lillian B. Gelbman, from a judgment of the Supreme Court in favor of the defendant, entered |