Appellate Division.

[Nov. notice of Kruger & Co. A. It was probably mailed." He was then asked the following questions: "Q. What is your recollection, after being refreshed by this memorandum, and from your knowledge of the business course that was carried on there, -what is your recollection as to what was done with that notice? A. Put in an envelope, and mailed to Box 811, P. O., New York City. Q. What was the course of business as to the mailing of all mail matter from the receiver's office? A. It was inclosed in an envelope, sealed, and put on the receiver's desk, or in the mail box, and taken over to the post office by the janitor." He adds that stamps were put on at the request of the receivers. The plaintiff then called John Dover, who had been employed in the bank, prior to the suspension of business, as janitor and messenger, for 12 years, and he testified that he remained with the receivers after they came into the bank, and went after the letters for the bank, and brought them from the post office to the bank; and he adds: "I collected the letters for the mails,-to go out in the mails; stamped them that wasn't stamped. any letters that wasn't stamped, I stamped them. to the stamps to do such things, and mail them. I bundled them up, and carried them over to the United States post office, on Seneca street. I always did that with letters for the mail while I was in the employ of the receivers." Subsequently the witness Walsh was further cross-examined, and gave such circumstances as were recalled by him, and in the course of his redirect examination he said: "My recollection is that I saw the notice of protest, or draft, returned, and spoke to one of the employees of the bank, expressing surprise. I remember the circumstances of it being received, and marking it 'Protest' on the tickler, and my speaking to someone about it. It was my duty to mail those notices of protest to the indorser, Kruger & Co., or to Andrew Brown. Mr. Clark, the bank examiner in charge at that time, imposed that duty upon me.' The witness was then asked, "State what was the form of the notice of protest forwarded for Kruger & Co. to New York," and the witness answered, "It was the usual form of notice." The witness added that he had been in the banking business, and accustomed to see

If I found I had access To mail them,

ing notices of protest, for some 14 years, and thereupon he was asked the following question: "Q. What is your best recollection now, after having seen that memorandum, and after having your recollection refreshed, as to whether or not you did forward that notice.-mailed it, and put the postage on it? A. I think I mailed the notice the day of its receipt, after marking 'Returned' on the discount tickler. Q. Is that usually the course of business? A. Yes, sir. Q. After the receivers came in, did you have the same duty about forwarding notices of protest? A. Yes, sir." We think the evidence supports the finding of fact made by the trial judge, that notices were given.

In volume 3, Randolph on Commercial Paper (section 1312, p. 364), it is said:

"The evidence of the bank officers as to the invariable course of business of the bank, to the effect that notice must have been sent, has been held to be sufficient to go to the jury, although the witness had no recollection of the particular matter."

In section 1314 the same learned author says:

"The sufficiency of the evidence, as well as its credibility, should be left to the consideration of the jury; and their conclusion as to the facts is sufficient to support the verdict, although it may differ from the opinion of the court as to such facts."

It must be borne in mind that there is no affidavit denying receipt of the notice, and, under such circumstances, we think the evidence given tending to show that notice was sent should be liberally construed.

In McLean v. Ryan, 36 App. Div. 281; 89 St. Rep. 232; 55 N. Y. Supp. 232, it was said:

"An indorser can always compel the production of common-law evidence against him to prove the service of notice by an affidavit denying receipt of notice. For that reason, where the indorser is unwilling to make such an affidavit, the courts are inclined to construe the notarial certificate with great liberality,"-citing Seneca County Bank v. Neass, 3 N. Y. 442.

In 2 Edw. Bills & N. § 987, where a notary had testified that he had no doubt notice was given, though at that distance of time he could not recollect positively, and that it was possible he

might have given the notice to the holder to forward, the author says:

"This evidence, say the court, was certainly sufficient, in the first instance, to support the averment of due notice, and, there being nothing to affect it, it will support the verdict." See also section 188.

In Union Bank v. Stone, 50 Me. 595, the notary testified that he was in the habit of delivering notices to S., and S. testified that he was in the habit of delivering notices for the notary, and that he seasonably delivered to the parties to be notified all notices handed him for delivery, but had no definite recollection of doing so in the present instance; and it was held by the court that this testimony was sufficient.

In Daniel on Negotiable Instruments (volume 2, § 1056), it is said:

"Where a notary testified that 'it was usual for him to send notices of dishonor on the evening of the day of protest, and he had no doubt it was duly done in this instance,' it was held sufficient evidence of notice."

See also Miller v. Hackley, 5 Johns. 375; New Haven County Bank v. Mitchell, 15 Conn. 206; Daniel, Neg. Inst. (4th ed.) § 1054, where it is said, viz.:

"When the mail is the proper channel for the communication of notice, it is not necessary to show the distinct fact that the particular letter containing the notice was put in the mail by ocular evidence thereof. Proof that notice was put with letters for the postoffice by one clerk, and that the letters of that day were deposited by another clerk, would be sufficient. And it would likewise be sufficient that it was put with letters customarily made up in the usual course of business for the postman, and that he invariably carried all the letters found upon the table."

The trial court having found the essential fact upon evidence which we believe to be sufficient to support its finding, it is our duty to sustain the conclusion drawn by the trial judge from the evidence, and sustain his finding of fact in respect to the service of notice, and the judgment should be sustained.

Judgment affirmed, with costs. All concur.

1899]

People v. Colcr.

PEOPLE v. COLER.

[44 App. Div. 183; 94 St. Rep. 656; 60 Supp. 656.]

(Supreme Court, Appellate Division, First Department. November 10, 1899.)

1. ATTORNEYS COMPENSATION-SERVICES UNDER ASSIGNMENT BY COURT. Under Code Cr. Proc. § 308, as amended by Laws 1897, c. 427, which provides that, where the court assigns counsel to defend one accused of a crime punishable with death, the court in which the defendant is tried, or in which an appeal is finally determined, may allow counsel a reasonable fee, not exceeding $500, which allowance shall be a charge on the county in which the indictment is found, an attorney who defended a person accused of murder, and to whom the trial court awarded $500 as compensation for his services, is not, on the case being appealed to the court of appeals, entitled to an additional allowance for services therein.

NOTE. COMPENSATION OF ASSIGNED COUNSEL.

a. In criminal cases.

b. In actions in forma pauperis.

a. In criminal cases.

Matter of Purdy, 28

The opinion of Gildersleeve, J., in the principal case, upon the denial of the application at special term is reported sub nom. Misc. 303; 93 St. Rep. 887; 59 Supp. 887.

The actual decision in People v. Heiselbetz, 30 App. Div. 199; 85 St. Rep. 685; 51 Supp. 685, was that an appeal did not lie from the order of the trial court refusing to modify its certificate allowing $500 to each of two counsel assigned to defend a person accused of murder.

The opinion of the appellate court indicated that the certificate was not warranted by the statute, but that the way to defeat it was by treating it as a nullity, when presented for payment.

The court at special term (People v. Heiselbetz, 26 Misc. 100; 89 St. Rep. 4; 55 Supp. 4; 5 Ann. Cas. 165) had held that there was no limit to the number of counsel which might be assigned, following People v. Fitch, ....

Appellate Division.

2. ATTORNEYS-RE-ASSIGNMENT

APPEAL.

[Nov.

The denial of the application of the accused, intermediate the conviction and appeal, for a change of attorneys and the continuance of the attorney originally assigned, does not amount to a re-assignment, so as to give him the status of a newly assigned counsel to prosecute the appeal.

Appeal from special term, New York county.

Application in the name of the people by Frederick M. Czaki for mandamus against Bird S. Coler, as comptroller of the city and county of New York. From an order denying the application, petitioner appeals. Affirmed.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

A. H. Hummel, for appellant.

Theodore Connoly, for respondent.

PATTERSON, J. This is an appeal from an order denying the relator's application for a writ of mandamus to compel the comp

COMPENSATION OF ASSIGNED COUNSEL,-continued.

Misc.......; 85 St. Rep. 683; 51 Supp. 683, and in this view the Appellate Division concurred, but indicated that the total allowed to all the counsel so assigned could not exceed $500.

In People v. Goff, N. Y. Law Journal, April 7th, 1897, which was an application for a mandamus to compel the Recorder to award assigned counsel compensation for services rendered on appeal to the Court of Appeals in a capital case, the counsel having had one allowance for services at the trial, Smyth, J., held that the mandamus should issue. This, however, was prior to the amendment of 1897 to § 308 of the Code of Criminal Procedure.

In that case the Court of Appeals had reversed the judgment of conviction and ordered a new trial and remitted the case to the Court of General Sessions, and it was held that that court and not the Court of Appeals was the proper one to make the additional allowance.

The amendment of 1897 seems to contemplate that the appellate court shall make the allowance for services in such court. Especially is this so when the judgment of death is affirmed, when under § 543 of the Code of