The opinion of the court was delivered by
Redeield, J.This, being a New York contract, both as respects the place of execution and the place of performance, must be determined by the New York law. Whatever amounts to payment by that law, will be a defence to a suit upon the note everywhere ; so also of the converse of this.
The law upon this subject, in the state of New York, is well settled. It may well be expressed in the language of the court in Tobey v. Barber, 5 Johns. 68, c It is a rule vvell ‘ settled, and repeatedly recognized in this court, that taking ‘ a note, either of the debtor, or of a third person, for a pre- ‘ existing debt, is no payment, unless it be expressly agreed £ to take the note as payment, and to run the risk of its being £ paid.’ Putnam v. Lewis, 8 Johns. 304, was the case of a note given by the debtor, and the same principle is recognized. Mouldon v. Whitlock, 1 Cowen, 290, is the case of two debtors out of four giving their note for an account, against the whole, with the consent of the creditors, but with no express agreement that it should be received in payment. The court held it could not operate as payment. That case is, in principle, the same as this, and in its circumstances much stronger in fav^H^the note operating as payment. It is obvious that, by ^Mlaw of New York, the note of Cull did not extinguish the right of action against the defendants.
*86In regard to the payments made by Cull after this note fell due, when he had also another note due the plaintiffs, and gave no directions how the money should be applied, we think the plaintiffs were fully justified in applying the money, as they did, to their other note. No principle, perhaps, is better established, than that when the debtor makes no appropriation of money, paid generally, the creditor may make his own application, unless there be something in the case to show a different expectation on the part of the debtor.
Judgment affirmed.