
    KENNEDY v. BENSON.
    (Supreme Court, Appellate Term, Second Department.
    December 17, 1913.)
    Husband and Wife (§ 19)—Liability of Husband for Services Rendered Wife.
    A husband is not liable to a surgeon who operated on his wife, where the wife did not request the operation, but only passively acquiesced in it, and no person having any power of agency for the husband requested or authorized it.
    [Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 109, 121-138, 142, 146, 322; Dec. Dig. § 19.*]
    Appeal from Municipal Court, Borough of Brooklyn, Third District.
    Action by James C. Kennedy against Beverly D. Benson. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    The plaintiff, a physician and surgeon, sued the defendant for professional _ services, to wit, a surgical operation performed by plaintiff on defendant’s wife, while defendant was temporarily away from the city.
    
      The opinion of Lucien S. Bayliss, as justice of the Municipal Court, is as follows:
    It is evident from the testimony of the son of the defendant that the defendant’s wife in no sense requested the plaintiff to perform the operation for which compensation is herein sought, and that the operation was made possible by what at the most can be found to be passivity and nonresistance on her part. No agency is shown in any other members of the family sufficient to bind the defendant for such services.
    No question has been raised as to the reasonableness of the charge made by the plaintiff, nor as to the professional skill and ability exercised by him in the operation, and while there is no question but that the plaintiff should be paid therefor, we feel that he has not sustained the burden of proof which is upon him herein.
    Argued December term, 1913, before MADDOX, JAYCOX, and ASPINADD, JJ.
    Daniel A. Boyle, of New York City, for appellant.
    William Van Wyclc, of New York City, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

Judgment affirmed, with costs, without opinion by the Appellate Term. All concur.  