On this record plaintiff is entitled to partial summary judgment in the amount of $30,370, i.e., the amount of $38,100 owing for the period accruing under the separation agreement since December 20, 1971, which was six years prior to commencement of this action, through April 30, 1979 (the date of preparation of the instant motion by plaintiff, which is the last date for which plaintiff seeks recovery on her motion for summary judgment relief), less the sum of $7,730 representing payments made by defendant pursuant to the Family Court order entered January 14, 1975. I conclude that the circumstances unequivocally demonstrate the defendant’s intention that the payments be made since January 14, 1975, be applied to his then current obligation to plaintiff rather than to the extinguishment of claims which are earliest in point of time. In other words, I view the record as presenting a question, of law in respect of this issue.
Pursuant to the separation agreement' dated November 23, 1959, defendant was obligated to pay plaintiff $100 per week for support. The agreement was incorporated, but not merged in, a Mexican divorce decree entered January 16, 1960. In 1974, plaintiff commenced an enforcement proceeding in Family Court respecting the support provisions of the divorce decree. Defendant successfully cross-moved therein for a downward modification of support to $35 weekly, commencing January 14, 1975. In 1977, *444plaintiff commenced the instant action for support arrears under the separation agreement (breach of contract), alleging that defendant, since January 1, 1962, has been in arrears under the agreement. After issue was joined, plaintiff moved for summary judgment, declaring that the payments made by defendant were credited by her against the outstanding arrears earliest in time and that she was “also suing [defendant] for the difference between the $100.00 a week support provided by the separation agreement and the $35.00 a week ordered by the Family Court, that is, for the sum of $65.00 per week from January lk, 1975 to date” (emphasis supplied).
Assuming defendant failed to direct how payment is to be applied, the plaintiff was entitled to make the application as she saw fit. While plaintiff states that she credited defendant’s payments against the outstanding arrears earliest intime, the surrounding circumstances, the conduct of the parties, and plaintiff’s statement in her affidavit in support of her motion for summary judgment relief, quoted above, impel the legal conclusion that defendant’s intention as to how payment was to be applied was disclosed with respect to payments made subsequent to the Family Court order entered January 14, 1975. “There is no particular mode which the debtor must follow in order to avail himself of his right to direct the application of a payment. And the application may be shown either by express words or by conduct or circumstances indicative of his intention, Which also may be inferred from the circumstances of the case generally” (43 NY Jur, Payment, § 61, pp 527-528; emphasis supplied).
Plaintiff in her affidavit as above indicated, in effect admits that defendant’s payments since January 14, 1975 were made under the auspices of the Family Court order, in that she is seeking to recover the difference between such payments and the amount accruing since such date under the agreement. The only reasonable inference to be drawn under the circumstances on this record is that defendant’s payments since January 14, 1975 were made solely to comply with the Family Court order, that is, with his current obligations commencing January 14, 1975. Further, apart *445from the reasonableness of this inference, the dictates of justice and equity in this case support the conclusion that defendant’s payment of $7,730 since January 14, 1975, were made in respect of current obligations and intended by defendant to be so applied. Accordingly, while plaintiff is entitled to partial summary judgment in the amount of $30,370, defendant is entitled to partial summary judgment dismissing so much of plaintiff’s claim for arrears under the agreement as seeks a greater amount.
On the issue of counsel fees, Fabrikant v Fabrikant (19 NY2d 154) holds that in an action on a separation agreement to recover arrears, the court in its discretion has the power to award counsel fees. The separation agreement herein contemplated by inference the plaintiff’s seeking such counsel fees upon the defendant’s default under the agreement. Special Term, in failing to grant plaintiff summary judgment, did not reach the issue of counsel fees and so did not endeavor to exercise its discretion in any manner. As we have the power to exercise discretion, the issue is whether, under the instant circumstances, we should exercise the power to grant counsel fees. In light of the agreement and the Fabrikant rationale, I believe we should exercise discretion to grant counsel fees and to remand the matter to the court below for a hearing to determine the reasonable amount of such fee. As stated in Fabrikant (supra, at p 159): “The defendant’s conduct in attempting to avoid his obligation to his former spouse has resulted in unnecessary and expensive litigation. The allowance of counsel fees was authorized by the statute, undoubtedly to discourage such conduct.”