
    ELLEN MASON, Resp’t, v. JAMES W. PRENDERGAST, App’lt.
    Trustee—When one proved to hold funds as trustee.
    Appeal from a judgment in favor of plaintiff, in an action tried at the Westchester county special term.
    
      John W. Alexander and Joseph F. Daly, for resp’t; Matt. H. Ellis, for app’lt.
   Pratt, J.

The findings of fact are abundantly sustained by the evidence, and they amply support the judgment rendered.

It may, perhaps, be true that the money which Bridget Prendergast gave to Ellen Mason was the product of defendant’s earnings, though we do not regard it as established. But were that conceded, it is by no means shown that Bridget had not the legal right to dispose of it as she did. The appellant asks us to find that his money was left with his mother as a mere depository. But the fact that it was deposited in the bank, and for years remained in the mother’s name, does not establish nor tend to establish that it was the property of the son.

Possession is evidence of ownership in the possessor, not of some-other person. Nor is there any proof of any trust. The fact that Bridget assumed to treat the money as her own may be regarded as some evidence of her right to do so; nor is there any evidence that Ellen did not receive the money in entire good faith.

Her temporary acquiescence in defendant taking the money can be explained without imputing to her any doubt as to the title of her aunt to the money given her.

She may well have had some of the feeling with which the defendant is fully imbued, that for his mother to give any money to her niece was to deal unjustly towards a closer relative, her son.

And the fact that Bridget left an estate amply able to respond to any claim defendant may bring against it, is another reason to be satisfied with the judgment, which is affirmed, with costs.

Barnard, P. J., concurs; Dykhan, J., not sitting.  