16 Misc. 2d 689 | City of New York Municipal Court | 1956
I hereby find and decide that the plaintiff brings action as payee on a valid promissory note in the face amount of $1,500 delivered to plaintiff on March 7,1949, providing for “15% attorney fees if the within is turned over for collection ”, and providing for 6% interest per year. The defendants are the maker of the note, Beatrice Bothman, and the indorsers, Morris Silver and Aaron Eichler, who guaranteed payment thereof, jointly and severally. Silver was not served and did not appear, and the complaint is hereby dismissed as against him, without prejudice. As to the defense of payment, I find that at no time during or prior to the transfers to the creditor plaintiff of the part payments here found to have been made by the maker, were any of the part payments specifically allocated by a debtor, and therefore the creditor plaintiff had the right to apply the payments first in extinguishment of debts of the maker to the creditor plaintiff, other than the note here sued upon, which the creditor plaintiff did. The guarantor equally with the principal debtor was affected by such application to the debts which the guarantor had not guaranteed. (Wanamaker v. Powers, 102 App. Div. 485, affd. without opinion 186 N. Y. 562; Eccleston v. Sands, 108 App. Div. 147; Hamilton Factors Corp. v. Winston, 132 N. Y. S. 2d 458.) Further as to the defense of payment, I find that the contention of the defendants Bothman and Eichler is correct in fact and in law, that the net proceeds of the mortgage foreclosure of the mortgage, on the property of another, given by the maker to secure this note, which proceeds were received by the creditor plaintiff,
I further order and adjudge that said defendant Bichler, having demanded same in his answer, have judgment over and against defendant Rothman, for the amount of the judgment which is recovered herein by plaintiff against said defendant Bichler, together with the costs and disbursements of this action.
Five days’ stay of execution.