#### Albert E. Scott and Ella E. Scott, Composing the Firm of Albert E. Scott *& Co.,*Respondents, *v.*William L. Brown, Appellant.

(Supreme Court, Appellate Term,

April, 1899.)

Custom — Special custom, that a decorator might charge for the hoard of his city workmen, not binding.

An alleged custom, entitling a master decorator to charge for the board of workmen drawn by him from a distant city, not- proven to be a general custom of the trade and of which the owner of the property decorated never had any knowledge or notice, cannot be invoked by the decorator to make the owner pay such board.

*204Appeal by the defendant from a judgment of the Municipal Court, eleventh district, borough of Manhattan, rendered in favor •of-the plaintiffs,

William Steele Q-rey, for appellant.

A. Gr. M. Yermilya, for respondents.

MacLean, J.

The plaintiffs’ assignor, who was the plaintiff ' first above named, was employed by the defendant to do certain . painting and decorating on his premises near Suffern, and he, in turn, employed workmen drawn partly from that neighborhood and partly from the city of New York. ' Some of the latter were paid by the piece, and some by the day. In addition to the per diem’ charge and the charge by the piéce, the assignor charged for the transporation and for the board of the men from the city •of New York. The bills, including one containing a charge for transportation, presented by the assignor and by the plaintiffs, • were paid by the defendant, until he noticed a charge for board! That he refused to pay. The action was brought as for a balance •due for moneys expended for paying board of painters and decorators employed on the premises of the defendant, at his request and upon his promise to pay for the same.

It’ was not contended That the defendant agreed to pay the board of the men hired by the plaintiffs, but plaintiffs contended that they were entitled to the balances, because of an alleged usage •or custom in that particular trade, entitling’ the. master decorator to charge for the board of the men employed. There is nothing in the evidence in reference to the alleged usage, or that the de-« fendant ever had any knowledge or notice of such usage. Walls v. Bailey, 49 N. Y. 464. The judgment should be reversed.

Fbeedmah, P. J., concurs.-

Leventritt, J. (concurring).

The custom which . the plaintiffs’ invoke was not such a uniform, continuous and general usage that the defendant must be presumed to .have contracted with reference to it. Dickinson v. City of Poughkeepsie, *75*N. Y. 65, *77.*It was rather local, partial or personal, having reference to a par- i ticular trade. Such a custom raises no conclusive presumption (Walls v. Bailey, 49 N. Y. 464), and it was, therefore, necessary *205for the plaintiffs to show that the defendant had knowledge of its existence. Harris v. Tumbridge,, 83 N. Y. 92, 100. Hot only is there no evidence of knowledge, or notice on the part of the defendant, but the latter affirmatively testified that no such custom obtained, and that if it did, he was entirely ignorant of its prevalence. Ho claim is made that the usage was expressly incorporated in the contract.

The court below erred in that it applied the principles appertaining to a general custom, of which no one can be heard to profess ignorance, instead of those relating to a special custom, knowledge, of which must be brought home to the contracting parties. ■ The judgment must, therefore, be reversed.

Judgment reversed, with costs to appellant to abide event.