
    James J. Farren, Survivor, etc., Resp’t, v. Lucy McDonnell, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    
      I. Appeal—Conflicting evidence.
    To justify a reversal on questions of fact when the evidence is conflicting, it must appear that the proof so clearly preponderates in favor of a contrary conclusion that it can be said, with reasonable degree of certainty, that the trial court erred in its conclusions.
    3. Payment—Application.
    If a debtor fails to give direction, at the time of payment, as to the application of the money, the creditor may make his own choice as to its application.
    Appeal from a judgment entered upon the report of a referee, in favor of the plaintiff and respondent.
    
      Westbrook & Borsi [Z. S. Westbrook, "of counsel), for app’lt; J. J. Darren, in person, for resp’t.
   Mayham, P. J.

One of the principal contentions of the appellant on this appeal is that the referee erred on the trial of this - action in awarding to the plaintiff too large an amount as the value of their services, rendered for the defendant. As the case stands the question was purely one of fact determined by the referee upon conflicting evidence. The action was for professional services, rendered by the plaintiff for the defendant, and the value of those services was testified to by eminent lawyers on either side, who assumed to take into account, the amount and Find of services rendered as well as the capacity of the eminent lawyers by whom they were performed, a method usual and proper in determining the value of such services, and while there is a wide margin of difference between the opinion, or judgment of the witnesses on the different sides-of this case as to the value of ' their services, we have carefully examined the evidence upon which the respective parties rely, in support of their contention, and find abundance of evidence to support the conclusion of the referee as to the value of these services.

The power of this court on appeal to review and reverse the ■finding of a referee upon questions of fact, is not denied, but that power is rarely exercised where there is sufficient evidence of an unobjectionable character to sustain the report. The rule governing the exercise of that power in the appellate court is well stated by Huger, 0. J., in Bond v. Mayor, etc., of New York City, as follows: “In reviewing the determination of a trial court on questions of fact when the evidence is conflicting, an appellate court is not warranted in reversing on the sole ground that, in its opinion, the trial court should have reached a different conclusion; to justify a reversal it must appear that the proof so clearly preponderated in favor of a contrary conclusion that it can be said with a reasonable degree of certainty, that the trial court errred in its conclusions. And any other rule would nullify the peculiar advantage which that tribunal possesses in observing the manner and appearance of the witnesses produced and the various physical and mental peculiarites by which the mind of the professional observer determines the degree of credit which ought prudently to be attached to oral testimony.”

It is also contended that payment were from time to time made as appears by the proof which should have been applied by the referee upon the claims for services for which this action was prosecuted. But this evidence was met by evidence that these plaintiffs or one of them, had rendered a large amount of service not contained in the complaint, in this action. And it was contended and the referee in effect finds, that the payment or advancements so proved were applied upon such services and the proof of the plaintiff, justifies such application of the same; and as there was no proof of any direction given by the defendant as to the application of the money so paid, the plaintiff was at liberty to apply it on any debt due him at the time of the payment.

The rule is well settled that while a debtor may give direction at the time of payment as to the application of the money, yet, if he fail to do so the creditor may make his own choice as to its application. This rule is laid down in Bank of California v. Webb, 94 N. Y., 467, by Bari, J., as follows: A debtor paying money to a creditor to whom he owes several debts may direct the application of the payment, because the money is his, and he may do as he will with it, and control its application. But the debtor must exercise his option as to the application when he makes the payment, after that the money has ceased to be his, and is no longer subject to his control. Then it belongs to the creditor, and he is master of it, and may control its application.”

The finding of the referee that the payments were applied upon other debts of the defendant was supported by sufficient evidence to uphold it, and with that finding we should not interfere. But the appellant urges that a receipt and note was given by Hinman, which are evidence that the defendant did not owe plaintiff at that time. It is quite true that such transactions are prima facie evidence. De Forest v. Bloomingdale, 5 Denio, 304. But this prima facie evidence may always be overcome by proof. Ryan v. Ward, 48 N. Y., 204; Miller v. Cates, 66 N. Y., 609.

The legal presumptions arising from these transactions were met by evidence from which the referee might find that they did not establish a settlement or payment in full at the time that they were given.

We have examined the rulings and decisions of the referee on the trial, and the various exceptions taken by the defendant in the case, and find no error for which this judgment should be reversed.

Judgment affirmed, with costs.

Putnam, J., concurs; Herrick, J., not acting.  