Reich v. Reich — 27 N.Y.S. 137

Majority

p. 137

(6 Misc. Rep. 628.)

REICH v. REICH.

(City Court of New York, General Term.

January 18, 1894.)

Headnote

Payment—Application—Question oe Fact.

Where a receipt states that a payment was received on a certain note, and the creditor testifies that he intended to describe a certain other note of the debtor, and that the description of the note was inserted by mistake, it is for the jury to determine to which note payment was intended to be applied.

Appeal from trial term.

Action by Jacques Beich against Lorenz Beich. From a judgment in favor of defendant, plaintiff appeals. Beversed.

Argued before FITZSIMONS and McCABTHY, JJ.

John L. Wilkie, for appellant.

Abram Kling, for respondent.

The defendant had an undoubted right to elect note he chose to pay, but I fail to find in the printed case on appeal any. evidence that he exercised that right. In that event the plaintiff had the right to select either note for payment, and seemingly he chose the note of November 28, 1890, and also compelled payment of the interest thereon before he delivered it up to defendant. The fact that plaintiff signed a receipt stating that he received $1,000 on the note of June 6, 1891, is not conclusive against him. He claimed that he intended to insert the note of November 28, 1890, but by mistake inserted the note of June 6, 1891. It seems to us that it was for the jury to say whether or not the defendant directed the plaintiff to receive the $1,000 paid in payment of the June, 1891, note, or whether or not the plaintiff, of his own volition, selected that note for payment. The question thus presented was a question c-f fact for the jury to determine, and not a question of law for the learned trial justice to decide. Therefore,

p. 138

in our judgment, it was error for him to direct a verdict for defendant. Judgment reversed, and a new trial ordered, with costs to appellant to abide event of action.