
    Fourth Department,
    November, 1928.
    Mary Doris Ketcham, an Infant, by Ida D. Vrooman, Her Guardian ád Litem, Appellant, v. Fred B. Wilbur, as Executor, etc., of Mary B. Hand, Deceased, Respondent.
   Per Curiam.

When this case was in this court on a prior appeal a judgment in favor of the plaintiff was reversed upon the facts and a new trial granted. (222 App. Div. 788.) On that record we found that the evidence did not justify the finding of the jury and, therefore, ordered a new trial. The testimony of the witness Mrs. Gascoin and of the witness Florence Tyler, upon the previous trial, seemed to refer to conversations with Mrs. Hand in regard to providing for Mrs. Ketcham if she would adopt and care for the plaintiff. Upon this trial there is specific testimony given by both of those witnesses to the effect that Mrs. Hand agreed with Mrs. Ketcham to provide for the infant in her will if Mrs. Ketcham would adopt her and bring her up. That testimony, if believed by the jury, was sufficient to make a prima facie ease, and required the trial justice, in the first instance, to submit to the jury the question of fact. It was error, therefore, for the trial justice to direct a verdict in favor of the defendant. All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ. Judgment and order reversed on the law and a new trial granted, with costs to appellant to abide the event.  