
    Louise Allen Pryor, as Executrix of the Last Will and Testament of William R. Pryor, deceased, Respondent, v. George J. Milburn, Executor of the Last Will and Testament of Sophie Beaver, deceased, Appellant.
    (Supreme Court, Appellate Term,
    November, 1906.)
    Executors and administrators — Actions and proceedings in general — Pleading — Causes against representatives as such.
    In an action against an executor to recover for the services of a surgeon for performing an operation upon defendant’s testator, where the evidence warrants an inference of a request by the decedent and the value of the services is stipulated, the fact that the word “ as ” is omitted between the executor’s name and the word “Executor” is not important and, not having been raised at the trial, may not be raised effectively upon appeal, particularly where the summons contained the word.
    Downus, J., dissents.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, twelfth district, borough of Manhattan, rendered in favor of the plaintiff.
    
      Mark Alter, for appellant.
    F. Solinger, for respondent.
   Per Guriam.

There was evidence that plaintiff’s testator had performed an operation for pay upon defendant’s testatrix at the hospital about three days-prior to the operation for which compensation is sought; that the last operation was absolutely necessary on the chance ” to save the life of defendant’s testatrix, and that the defendant’s testatrix was operated upon as claimed. This evidence warrants an inference of a request upon the part of the patient to have the operation performed, with an understanding that a reasonable compensation would be paid for the performance of it. The stipulation, it seems, was that the value of the services was $225. It is true that plaintiff’s counsel said that it was stipulated “ that the amount of recovery be $225,” but this he followed by saying that the value of the services * * * is $225.” It seems quite clear that he corrected his first statement. This seems to have been the view of the learned trial justice, and we are unable to say that he was wrong. The point that the word “ as ” does not appear after Mil-bum and before “ Executor ” is not important. At the beginning of the trial plaintiff’s counsel stated: This is. an action for services against the executor.” The defendant; apparently acquiesced. In no way did he present at the trial the point he now makes, and, therefore, he should not now be. permitted to raise it effectively. The summons seems to. contain the word. The statute was matter of defense, andl there was no evidence that it had been violated.

The judgment should be affirmed, with costs.

Gildebsleeve and Dugbo, JJ., concur; Dowling, J., dissents.

Judgment affirmed, with costs.  