
    LARKINS, Appellant, v. McGINLEY, Respondent.
    (Supreme Court, Appellate Term.
    November 10, 1904.)
    Action by Bridget Larkins against Edward T. McGinley, as executor of the will of Bridget Harrington, deceased. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Affirmed. Burn-ham Kalisch, for appellant. Mulqueen & Mulqueen, for respondent.
   BISCHOFF, J.

This action is brought against the executor of the last will and testament of one Bridget Harrington, deceased, for services alleged to have been performed by the plaintiff to said deceased, based upon her promise to pay therefor. Nothing' is involved herein but a question of fact, to be determined by the trial court, based upon all the facts and circumstances shown by the testimony and the reasonable inferences to be drawn therefrom. Upon a former trial (88 N. Y. Supp. 153) the complaint was dismissed, and upon appeal this court reversed, holding that the court below should have considered the evidence, under the authority of Schlesinger v. Jud, 61 App. Div. 453, 70 N. Y. Supp. 616. Nothing was contained in the opinion then given from which it could be inferred that this court intended to indicate how the case should have been determined upon the merits, and it is peculiarly the province of the lower court to pass upon questions of fact. Judgment affirmed, with costs. All concur.  