
    Bernard Mittleman, Appellant, v. John R. Todd, Respondent.
    
      Debtor and creditor — application of payments.
    
    Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office, dismissing the complaint at the close of the plaintiff’s case.
   McLaughlin, J.:

Action to recover $15,000 upon the following instrument:

11 December 13, 1904.
“ Received from George E. Wallace, a loan of Fifteen thousand ($15,000) dollars to be repaid to him on or before four months from the date hereof, with the understanding that in case I fail to repay said amount he may have the same applied upon the bond of the second mortgage of Seventy-five thousand ($75,000) Dollars on Hotel Seymour.
“JOHN R. TODD.

At the close of the trial a motion was made to dismiss the complaint. A decision upon the motion was reserved and the issues were submitted to the jury, with instructions to find a general verdict, and also to answer certain specific questions of fact. The jury disagreed, and the trial court, after argument, granted the motion to dismiss. Plaintiff appeals. The principal question litigated was whether Wallace, plaintiff’s assignor, or the defendants had, under the instrument above quoted, the option to apply the §15,000 upon the mortgage therein referred to. It was unnecessary to determine that issue because the undisputed evidence establishes that the §15,000 was actually applied as a payment upon the mortgage by consent of both parties. The letters passing between them after the payment was made, and especially Wallace’s letter of January 30, 1905, and defendant’s letter to Wallace, dated January twenty-eighth, taken in connection with the other correspondence, clearly and unmistakably establishes it. The trial court, I think, should have so held and dismissed the complaint. But even if it be held there was some evidence to go to the jury, the evidence was so preponderating in favor of the defendants that a verdict in favor of the plaintiff would not be permitted to stand. Under the recent amendment of section 1317 of the Code of Civil Procedure it is the duty of this court to give the judgment which the trial court should have given. This amendment provides that “After hearing the appeal the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” The judgment appealed from is, therefore, affirmed, with costs. Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ., concurred. Judgment affirmed, with costs. 
      
       Laws of 1912, chap. 380.— [Rep.
     