
    Ellen Mason, Resp’t, v. James W. Prendergast, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Evidence—Witness—Interested party.
    Catharine Mason received from her mother and held as trustee for the plaintiff $1,050, and without the knowledge of the latter gave the money to defendant, who received it with knowledge that it was so held by Catharine, and refused to pay it over to plaintiff, claiming that the fund belonged to him and had been handed by him to the mother. Held, that in view of defendant’s relation to the controversy, and his interest in the result, the credibility to which his evidence was entitled was a matter for the consideration and determination of the trial court.
    2. Same—Code Civ. Pro., § 829.
    As defendant did not derive his claim to the money from his mother, there was no support for the contention that the evidence of Catharine relating to the transaction between Mrs. P. and her was incompetent under § 829 of the Code, but defendant was incompetent to testify as to any transaction between hijn and his mother.
    Appeal from judgment of the general term of the supreme court in the second judicial department, affirming judgment entered upon decision of the court at special term in favor of the plaintiff.
    The action was founded upon the alleged facts that Catharine Mason held, as trustee for the plaintiff, $1,050, and 'without her knowledge or consent gave that money to the defendant, who received it with knowledge that it was so held by Catharine, and that he had refused to pay the same over to the plaintiff. All the material facts alleged by the plaintiff were put in issue by the answer of the defendant. The referee found the facts substantially as alleged by the plaintiff and directed judgment against the defendant.
    
      Adam G. Ellis, forapp’lt; Joseph F. Daly, for resp’t.
   Bradley, J.

The evidence on the part of the plaintiff was mainly furnished by the testimony of Catharine Mason, sister of the plaintiff, to the effect that Bridget Prendergast, the mother of the defendant, gave to her and the plaintiff $2,100 consummated by the delivery of that amount of currency to Catharine with direction to deliver one-half of it to the plaintiff; that Catharine received the money pursuant to such gift and direction, and so advised the plaintiff, for whom by consent of the latter she held the one-half subject to her order. The donor died nearly a year afterward and while the entire amount remained in the hands of Catharine, and that within a few days thereafter she was induced to permit the defendant to take the money. This was done without the knowledge or consent of the plaintiff. The defendant alleged that the fund belonged to him and testified that he had for several years been at work earning and receiving money which he handed to his mother, and that the money, (this $2,100) was his money, and evidence of the declarations of his mother that the defendant had let her have money earned by him was given by the testimony of another witness. It appears that his mother had for several years made deposits of money in savings banks and that shortly before she handed this money to Catharine she took it from the banks.

The testimony of the defendant, taken as true, would have justified the conclusion that he was entitled to this money; but in view of his relation to the controversy and his interest in the result, the credibility to which his evidence was entitled was a matter for the consideration and determination of the trial court. The evidence on the part of the plaintiff tended to support the findings of +he court. And upon the whole there were presented questions of fact upon which the conclusion of the trial court, on this review, must be deemed conclusive. There is evidence that the money which the defendant received and appropriated was the identical money which was handed by his mother to Catharine, and assuming, as we must upon the facts as found, that she held one-half of it for the plaintiff, the question of identity of that half by way of distinguishing it from the other, is not important. The liability arose from the appropriation of money to which the plaintiff was entitled, and his refusal to pay it to her. This would support an action on her behalf as for money had and received to her use by the defendant. Pierson v. McCurdy, 33 Hun, 520; affirmed 100 N. Y., 608. And for the purpose of relief it was unnecessary to join Catharine as a plaintiff. Stall v. Wilbur, 77 N. Y., 158.

It is contended that the evidence of Catharine relating to the transaction of the gift, which took place between Mrs. Prendergast and her, was not competent, and that it came within the inhibition of § 829 of the Code. But as the defendant did not derive his claim of title to the money from, through or under his mother, there seems to be no support for that contention. On the other hand, the plaintiff did acquire whatever interest she had in it from the donor, deceased. This rendered the defendant incompetent to testify to any transaction on the subject between him and his mother. And no evidence given by the plaintiff opened the way for such testimony of the defendant. The court refused to find any fact which tended to support the defendant’s claim, and found all the facts essential to the recovery by the plaintiff.

None of these exceptions are well taken. And, therefore, the judgment must be affirmed.

Judgment affirmed, with costs.

All concur, except Haight, J., not sitting. 
      
       Affirming 12 N. Y. State Rep., 869.
     