
    GILES H. FOWLER, as Executor, etc., of ELIZABETH WHITE, Deceased, Respondent, v. THE BOWERY SAVINGS BANK, Appealant.
    
      Deposit of money in a savings bank by one person in trust for another — on the death of the depositor the executor of the beneficiary is entitled to withd/raw the money — effect of the recovery of a judgment, against the executor of the depositor, therefor.
    
    Appeal from a judgment in favor of the plaintiff, entered in Queens county upon the trial of this action by the court without a pry-
    The action was brought by the plaintiff, as the executor of Elizabeth White, deceased, for money deposited in her lifetime in the defendant’s bank by her husband, John White. The defense was that the moneys had been paid to the executor of John White.
    The court at General Term said : “ The principles of law applicable to this case are well settled. John White made deposits in the defendant bank in trust for Elizabeth White. In the case of Man'tin v. Funic (15 N. Y., 134), it was held that such a deposit was a sufficient declaration of trust and passed the title to the depositor as trustee, and that his retaining the pass-book must be deemed to be the.act of a trustee. On the death of John White, Elizabeth White was the owner of the money thus deposited, and on her death the executor of her estate was entitled to receive the money. But the defendant claims that the money was properly paid out to the executor of John White under the authority of the case of Boone v. Citizens' Smmgs Bcmk (84 N. Y., 83); but the plain answer to this contention is that the trial court has found as a fact that, prior to the payment to such executor, the defendant had notice of the claim the executor of the estate of Elizabeth'White made to this fund, so that the defense hangs entirely upon the question whether such finding of fact is supported by the evidence.
    
      “ The plaintiff testifies that he called at the bank to see the amount of money that was there; saw an officer of the bank and exhibited his letters testamentary, and was told they would pay him the money when he produced the pass-book. He also testified that ' he received a letter from the bank of like purport. This evidence supports the finding that the bank had notice of the claim of the plaintiff prior to the payment to the executor of John White' and hence the case of Boone v. The Citizens' Savings Bcmk has no application. That the notice was sufficient no doubt can be entertained. The books of the bank contained ample evidence that this was a trust fund, and the demand of the plaintiff and the exhibition of his letters testamentary plainly indicated to the defendant that the plaintiff was entitled to receive the fund. It was a notice, in effect, that the rightful owner was not in possession of the passbook, and that its production by any other person would not justify the bank in paying out the fund.
    “ The fact that the plaintiff sued and recovered a judgment against the executor of John White furnishes no defense to this action. It has long been settled that recovering a judgment against the wrong person cannot be set up as a defense by the'1 right person, subsequently sued. (Atlantic Bock Co. v. Mayor, etc., 53 N. Y., 64, and cases there cited.)
    “ Judgment affirmed, with costs.”
    
      Carlisle Norwood, Jr., for the appellant.
    
      Bewja/min W. Downi/ng, for the respondent.
   Opinion by

Pratt, J.;

DykmaN, J., concurred ; BarNard, P. J., not sitting.

Judgment affirmed, with costs  