People v. North River Bank

Ingraham, J. I concur with the presiding justice that the petitioner had a place of business at 115 Broadway, Hew York, and that a notice of protest mailed to him there was sufficient to charge him as indorser upon the note in question. I do not think, however, that there should be a new hearing. The reference was not to hear and determine, but to take testimony as to a question of fact arising upon a motion, and to report to the court. The testimony has been taken, and is now before the court. It is not suggested that either party has any additional testimony that can aid the court in determining the question, and I think it our duty to either affirm the order, or reverse the 201 order, as the facts require. The only question that it is necessary to discuss, except the one decided by the presiding justice, is whether it is established by the evidence that the notice of protest was mailed on the 27th day of January, 1891, addressed to the petitioner at his place of business, 115 Broadway, Hew York. The referee finds that such notice was so mailed, and I think his finding is sustained by the evidence. Connell, who was in the employ of tlie receiver, testified that he received the notice of protest from the notary either on the 26th or 27th of January; that at the time he received the notices he handed them to his assistant, Bobertson. Bobertson swears that two notices were handed to him by Connell,—one addressed to Townsend, the maker of the note, and one to the petitioner, the indorser; that he put them in envelopes, and addressed them to the respective parties, and put them in the letter-box. He was then asked the question, “You recollect sealing them, and addressing them, and putting them in the box?” to which he answered, “Yes, sir, ” and he remembered it from getting the petitioner’s address from the “address-book” kept by theffiank. Blood, who was a messenger in the employ of the receiver, testified that it was his duty to take the letters from the letter-box, put stamps on them, and deposit them in the post-office; that on this day he took all the letters from the letter-box, stamped them, and deposited them in the post-office; and that he had full charge of the mailing of letters. And it would appear that the notice of protest to the maker of the note, sent at the same time, was duly received by him. There was not the slightest evidence tending to contradict this testimony, except the fact that the son of the petitioner says that he never received the letter at 115 Broadway, but this does not overcome the direct evidence before referred to. It appears that there was no one employed at the office Ho. 115 Broadway; that the petitioner’s son was in the habit of coming to the office every day; that when his business called him out of the office he locked the door; and that any letters coming when he was absent would be put through a slit in the door and fall on the floor. That a letter coming when Mr. Manley was absent from the office might have been overlooked on the floor, and so swept away and lost, is not improbable; and I think, on the evidence before us, that the petitioner is liable for the note. It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs and disbursements.