I dissent. The defendant was convicted of forgery on a general verdict. The indictment contained counts charging that he made and uttered the instrument, a promissory note. The note purported to be made by defendant to the order of Allison and to be indorsed by Allison. The defendant discounted the note at a national bank doing business in the village of Haverstraw. It was not paid at maturity. Allison was seasonably notified. Oleary, who was out of town on the day it matured, discharged the obligation on the following day.
Allison’s evidence is the sole support of the conviction. He says he did not indorse the note. He makes the following admissions: He and defendant had been friendly for a number of years. He had notice of non-payment. He thereupon visited the bank in relation to the notice. He made no suggestion to the bank official to whom he spoke. He made no revelation to anybody for nearly five years, and then only after he was an unsuccessful candidate for office and had attributed his defeat partly to the defendant, who was a *262factor of some strength in town politics. The only person to whom he revealed the transaction, before his testimony to the grand jury, was one who was charged with another crime. Defendant was without the State at the time, and Allison did not expect his return. Allison, desiring to aid the person thus charged, thought that such person could in some way be helped by the information.
Defendant denies the forgery. The cashier of the bank testified that Allison and Cleary had accounts at the bank. He was familar with the signature of both. Allison at no time complained that the instrument was forged. The cashier was satisfied, at the time he discounted the note, that the signature purporting to be that of Allison was genuine. The five-year-old note was not produced on trial. Defendant did not keep paid notes. That he did not retain this particular one as a keepsake is deemed culpable in the opinion of this court. I cannot concur in this view. I should say it is exceptional for the ordinary man to store paid notes for a long time. Neither the cashier nor defendant was impeached.
The evidence of the cashier of a small bank, familiar with the signature of Allison and defendant and charged with the duty not knowingly to take spurious paper, weighs something. Why should a jury be permitted to discard it in a system which requires facts to be established by evidence and which requires evidence to be weighed % By what evidence was the presumption of innocence overcome ? I cannot answer these questions in support of the verdict and give satisfactory reasons. (People v. Cignarale, 110 N. Y. 23, 27; People v. Smith, 6 App. Div. 234.) The case cited in the prevailing opinion (People v. Poulin, 207 N. Y. 73, 78) is a case in which there was a conceded murder. It was left to the jury to say which of the only two persons who were present at its commission was telling the truth. There was no other evidence on either side. The distinction in the case at bar is that there was additional credible evidence of substantial weight from an unimpeached and apparently disinterested witness.
Judgment of conviction affirmed.