
    Jacques Reich, App’lt, v. Lorenz Reich, Resp’t.
    
      (New York City Court, General Term,
    
    
      Filed January 18, 1894.)
    
    Payment—Application.
    In the case the debtor fails to elect upon which claim the payment shall apply, the creditor may select the claim.
    Appeal from a judgment in favor of defendant.
    
      John L. Wilhie for app’lt; Abram Kling for resp’t
   Fitzsimons, J.

The defendant had an undoubted right to elect which 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 28th, 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 $1,000.00 on the note of June 6th, 1891 is not conclusive against him. He claimed that he intended to insert the note of'November 28th, 1890 but by mistake inserted the note of June 6th, 1891. It seems to us that it was for the jury to say whether or not the defendant directed the plaintiff to receive the $1,000.00 paid in payment of the June ’91 or whether or not the plaintiff of his own volition selected that note for payment The question thus presented was a question of fact for the jury to determine and not a question of law for the learned trial justice to decide, therefore in our judgment it was error for him to direct a verdict for defendadt Judgment reversed and a new trial ordered with costs to appellant to abide event of action.

McCarthy, J., concurs.  