89 A.D.2d 1005 | N.Y. App. Div. | 1982
In an action, inter alia, on a guarantee, submitted upon an agreed statement of facts, defendants Peter Kowalevich, Sr., and Rosemarie Kowalevich appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Suffolk County (Wager, J.), entered August 17,1981, as ordered them to pay to plaintiff the sum of $6,057, with costs and interest. Judgment reversed insofar as appealed from, on the law, without costs or disbursements, the second decretal paragraph is deleted, and the complaint is dismissed as against appellants. The parties submitted the case on an agreed statement of facts, which essentially contained the following: Defendant Peter Kowalevich, Jr. (hereinafter Junior), doing business as K. O. V. Installers, was, on April 13, 1978, indebted to the plaintiff in the amount of $6,057. On April 13, 1978, his parents, the appellants, in writing, guaranteed payment of the account due as of that date. Thereafter, the plaintiff sold Junior additional merchandise in the amount of $13,503 and received payments totaling $9,750. Junior acknowledges that he is indebted to plaintiff in the amount of $9,810. Judgment was, therefore, properly entered in favor of the plaintiff and against Junior in the principal amount of $9,810. The issue at bar is based on the plaintiff’s fourth cause of action, which is against appellants as guarantors of Junior’s account. On the basis of “equity and justice”, Trial Term rejected appellants’ argument that the debt guaranteed by them had been satisfied since Junior had paid more than the amount guaranteed and the paid funds should have been applied to the guaranteed amount first. Trial Term was in error. As a general rule, the debtor has the right to specify to which debt he wishes a payment to be applied. In the absence of such a designation, the creditor may make it. When neither the debtor nor the