
    Martin Reynolds et al., App’lts, v. Thomas Patten, Impleaded, etc., Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 5, 1894.)
    
    Payment—Application.
    Though, where the parties do not make an application of a payment made by the debtor, the law presumes that it was their intention to extinguish the earlier indebtedness, and will so apply it, the creditor may apply it upon the later claim due him.
    Reaeg-ument of an appeal from a judgment of the general term of the city court of New York affirming a judgment in favor of the defendant, which was entered upon the report of a referee.
    Action by material men against contractor and owner for the foreclosure of á lien claimed pursuant to the provisions of the Mechanic’s Lien Law (Laws 1885, chap. 324) for the unpaid balance of the purchase price of certain materials sold to the contractor and alleged to have been used by him in making alterations under a contract with the owner.
    
      Edward W S. Johnston, for app'lts; Deyo, Duer & Bauerdorf (Robert E. Deyo, of counsel), for resp’ts.
   Daly, Ch. J.

When this appeal was decided upon the first argument, the court concurred in the able opinion of Judge Bischoee, which proceeded upon the theory that there was no evidence in the case of an application, or appropriation, by the defendant, or his contractor Fleming, of the last payment of $1,200, to any particular one of the three accounts included in the bill of $2,055.89, upon account of which that payment was made; and, that being the case, it was to be assumed that it was the intention of the parties to extinguish the earlier indebtedness, or that which accrued by the completion of the two jobs on Eighty-eighth street and Pleasure Bay, thus leaving a balance unpaid on the Eighty-sixth street job, for which this lien was filed.

It appears, however, from the evidence befere the referee, that, after the .payment of $1,200 had been made, the contractor rendered a bill to the defendant for $581.57, claiming then and at the trial that that sum was still due for the Pleasure Bay job; and also rendered a bill for $368.94, claiming that sum to be still due upon the Eighty-eighth street job; so it is manifest that he had not applied the payment upon either. As he also swore that the bill of $2,055.89, upon which he had received the $1,200, included all the balance which was due on all three jobs, except a per diem which was properly disallowed by the referee, and as the referee ialso properly disallowed $376.72 of excessive charges upon that bill, the evidence is conclusive that by the payment in question the claim for work on Eighty-sixth street had been extinguished, vtz.:

Bill of October, 1889............................ $2,055 89

Excessive charges..................... $ 376 72

Cash........t....................... 1,200 00—1,576 72

Balance................................... $479 17 or less than the amounts claimed to be still due upon the Eighty-eighth street and Pleasure Bay jobs. See testimony of Fleming at folios 274, 275 and 276.

The opinion of the referee shows the reasoning by which he arrived at his conclusion, which is sustained by the evidence, and the judgment should be affirmed.

Btschoff, J.

Upon the former argument of this appeal our determination, adversely.to the respondent, was based upon the assumption that all the parties had conceded a certain bill as rendered to correctly represent a balance due from the defendant Patten to the defendant Fleming, which, but for certain payments and deductions, would be applicable towards the satisfaction of the plaintiffs’ lien. Reynolds v. Patten, 5 Misc. Rep. 215; 54 St. Rep. 830. Upon the motion for re-argument, however, it appeared that this balance was conceded merely for the purpose of demonstrating the absence of an indebtedness, and not as a basis for any liability, and so that the concession was a qualified one.

Having further examined the record, and considered the questions involved in the appeal, I now unhesitatingly concur in the opinion of the chief judge, and upon the grounds therein stated  