| NY | Apr 3, 1984
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
Both sides in this ejectment action having moved for summary judgment, the narrow question for determination is whether defendants were in default in the payment of the monthly installments due under the purchase contract at the time the motion was made.
The contract called for payments of $200 per month, without interest, but permitted defendants to make payments in excess of that sum. Defendants in fact paid $300 per month for a number of months but later failed to make any payments. The total sum paid by defendants up to the time the motion was made was, however, $100 in excess of the amount that should have been paid had they made regular payments of $200 as the contract required. Whether defendants were in default, therefore, turns on how their excess payments were to be credited.
The general rule is that the debtor may direct the application of his payments, but if he fails to do so, then the creditor is permitted to apply the payments as he sees fit (Davison v Klaess, 280 NY 252, 261; Shahmoon Inds. v Peerless Ins. Co., 16 AD2d 716, 717). The presumption, however, is that a payment is to be applied to that portion of the debt first becoming due (see Farm Supplies Corp. v Goldstein, 240 App Div 330, 332). Here, although plaintiffs moved for summary judgment, they did not reply to or dispute the allegations in defendant William A. Larrow’s papers that the excess payments made were to be credited against installments later due but unpaid rather than against the last installments due under the contract and the receipts issued by plaintiffs bear out that construction. Plaintiffs not having overcome the presumption, defendants and not plaintiffs are entitled to summary judgment.