Opinion
March 7, 1949.
In an action by plaintiff, the mother of a child born out of wedlock, to recover from defendant, the putative father of such child, sums which defendant, by an alleged oral contract, promised to pay for and in consideration of the care and support of such child by plaintiff, both parties appeal from an order of the trial court which granted, in part, the defendant's motion to set aside the verdict of a jury in favor of plaintiff, and from the judgment entered thereon. Order reversed on the law and the facts, defendant's motion to set aside the verdict denied, and the verdict reinstated; and the judgment modified by increasing the amount thereof to that found by the jury. As so modified, the judgment, insofar as appealed from, is affirmed, with costs to plaintiff-respondent-appellant. In our opinion the questions of fact presented were for the jury to determine, and the jury's determination was not contrary to the weight of the evidence. Nolan, P.J., Carswell and Sneed, JJ., concur; Johnston and Adel, JJ., dissent and vote to reverse the order and judgment and to grant a new trial on the ground that the verdict is against the weight of the evidence.