showing by plaintiff of fraudulent conversion of her money. Plaintiff and defendant lived together as man and wife from 1925 until after the Park Avenue premises were destroyed by fire. Since defendant supported his wife during most of this time, it is not entirely unexplainable that he failed to render her an accounting of the rents and profits of the apartments. As to the occupancy of his own business, it was not fraudulent for him to fail to pay her one-half of the reasonable rental value. Indeed, it should be noted that plaintiff contended in the prior Lohmann appeal, supra, that she was a partner in his establishment.
Considering all the circumstances of the case, especially the fact that plaintiff is now to receive in any event a substantialhad no jurisdiction to enter the credit, the subject not having been foreshadowed by the pleadings or pretrial order.
During the hearing prior to the first Lohmann appeal, plaintiff testified she had taken $4,600 from the safe, deeming it part of the proceeds to which she was entitled from the sale of other realty they had owned jointly. At the conclusion of that hearing, however, the trial judge stated in his letter opinion that any interest she had in such proceeds had been preserved in the purchase of 8 Hamilton Avenue, which she continued to hold by the entirety with defendant. No appeal was taken from this determination.
At the supplemental hearing on the accounting, plaintiff changed her position and contended that she was entitled to take the $4,600 because