
    Farren v. McDonnell.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    1. Payment—Application by Cbeditob.
    Payments made by a debtor without any direction as to the application thereof may be applied by the creditor as he sees fit.
    3. Appeal—'Weight of Evidence.
    A finding of a referee will not be disturbed on appeal, where there is sufficient evidence to support it.
    Appeal from judgment on report of referee.
    Action by James J. Farren, as surviving partner, against Lucy McDonnell. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM, J.
    Westbrook & Borst, (Z. S. Westbrook, of counsel,) for appellant.
    James J. Farren, in pro. per.
   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 the 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 kind 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 Ruger, C. J., in Baird v. Mayor, etc., 96 N. Y. 567, 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 erred in its conclusions. 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 peculiarities 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 payments 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 v. Webb, 94 N. Y. 467, by Earl, 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 were 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 Freest 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. Coates, 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.  